Jagan Nath vs State of Punjab

P.K. Jain, J.—This appeal is directed against the judgment/ order dated January 6, 1996, passed by the Additional Sessions Judge, Amritsar, whereby the appellant has been convicted for an offence u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000/-, or in default of payment of line to further undergo rigorous imprisonment for six months.

The facts necessary for the disposal of this appeal are that on July 23,1994, S. I. Nirmal Singh (PW-2) along with DSP Ravi Bhushan (PW-5), SI/ SHO Surinder Singh (PW-3) and other police officials held Nakabandi near railway crossing Mann in the area of Ghariala. Shri Shabeg Singh, President Co-operative Society, Ghariala, was joined in the party. At about 10.30 a.m. the appellant was spotted while coming on the road Baba Sher Singh. On a suspicion, he was detained. S. I, Nirmal Singh (PW-2) informed the appellant that the former had adoubt that the appellant had opium with him and if he (appellant) so wanted, he could be searched either before a Magistrate or a DSP who was present there. The appellant expressed his desire to be searched in the presence of said DSP vide Exhibit PA. On a search of the plastic bag held by the accused in his right hand conducted by S.I. Nirmal Singh (PW-2), opium wrapped in a glazed paper was recovered. A sample weighing 20 gms. of the contents was separated. The sample as well as the remaining contents were converted into two separate sealed parcels with the seals of ''NS'' and ''RBJ''. Both the seals after use were handed over to the SHO Surinder Singh. Recovery and personal search memos were prepared on the spot. Ruqa (Exhibit PD) was sent to the police station, on the basis of which formal FIR carbon copy of which is Exhibit PD/1, was recorded. Case property was deposited in the Malkhana. On 16-9-1994, the sample parcel was sent to the office of the Chemical Examiner and after the receipt of his report the investigation was Completed and a charge-sheet was submitted to the Court.

A charge u/s 18 of the Act was framed against the appellant which he denied and claimed trial.

In support of its case the prosecution examined five witnesses. S. I. Nirmal Singh (PW-2), S.I. Surinder Singh (PW-3) and DSP Ravi Bhushan (PW-5) were the members of the police party and are the witnesses to the alleged recovery of the opium from the appellant. M. H. C. Surjit Singh (PW-4) was posted in Malkhana at Police Station Valtohaon that day with whom the case property was deposited. Constable Satnam Singh (PW-1) had taken the sealed sample parcel from Moharrir Malkhana, Police Station Valtoha on 16-8-1.994 and had deposited the same in the office of the Chemical Examiner on the same day. Shri Shabeg Singh PW was given up on the ground that he had been won over by the appellant. Exhibit PF the report of the Chemical Examiner was tendered in prosecution evidence. After the close of the prosecution case, the appellant was examined u/s 313 of the Code of Criminal Procedure, wherein he denied all the prosecution allegations and pleaded false implication. He has examined his own wife Santosh Rani (DW-I) to depose that her husband was forcibly taken away by the police when she along with her husband and other relations was going to Amritsar for treatment.

On an appraisal of the evidence produced before it, the trial Court found the appellant guilty of an offence u/s 18 of the Act and convicted and sentenced him as staled above. Hence this appeal.

I have heard the learned counsel for the parties and have gone through the record.

Shri S. C. Pathela, Advocate, learned counsel for the appellant, while assailing the order of conviction has vehemently argued that the entire prosecution case is highly suspicious inasmuch as the presence of the DSP and the SHO on the spot is doubtful and the independent public person Shri Shabeg Singh has not been produced by the prosecution at the trial. It has been further argued by the learned counsel that the mandatory provisions of Section 50 of the Act have not been complied with. It has also been argued that the possibility of tampering with the sample parcel till it reached the office of the Chemical Examiner has not been ruled out. It has been thus argued that the trial Court has ignored all these material aspects of (he case and the conviction of the appellant is liable to be set aside.

On the other hand Shri Ramanjit Singh, Assistant Advocate General, Punjab, while appearing on behalf of the State of Punjab, urged that the prosecution case is duly supported by three police officers including a Gazetted Officer; that the provisions of Section 50 of the Act have been duly complied with and that it has been established that the sample parcel was received in the office of the Chemical Examiner having the seals in tact. It has been pointed out by the learned Assistant Advocate General that Shri Shabeg Singh had been won over by the appellant and as such the prosecution had no other option but to give him up which docs not affect the prosecution case. The respective arguments have been carefully considered.

The first question Which falls for decision is as to whether the provisions of Section 50 of the Act, which are admittedly mandatory in nature, were complied with before conducting the alleged search of the appellant. In the* first information report, carbon copy of which is Exhibit PD/1, it is stated that SI Nirmal Singh had informed the appellant that the former had the doubt that the latter (appellant) was carrying opium and that if the latter so desired, he could be searched either before a Magistrate or the DSP who was present with the police party on the spot. S.I. Nirmal Singh (PW-2) has deposed on oath that he had told the appellant regarding his suspicion that the latter had opium in his possession and that if he so wanted he could be searched before DSP Ravi Bhushan who was accompanying them, and then the reply of the appellant-Exhibit PA was recorded. S. I. Surinder Singh (PW-3) and DSP Ravi Bhushan (PW-5) have also made similar statements on oath.

From a careful perusal of the testimony of the aforesaid three witnesses, it is evident that none of them has deposed that the appellant was informed regarding his right to be searched before a Magistrate or a Gazetted Officer nor any of them has deposed that an offer was given to him that he could be searched either before a Magistrate or before a Gazetted Officer. It is correct that the memo Exhibit PA, alleged to contain reply to the appellant, recites that an offer was given to the appellant that he could be searched if he so desired, either before a Magistrate or a Gazetted Officer but this record cannot be said to be substantive piece of evidence. The substantive evidence is the testimony of S. I. Nirmal Singh (PW-2), S.I. Surinder Singh (PW-3) and DSP Ravi Bhushan (PW-5) who have appeared in the Court arid have made their deposition on oath. Exhibit PA could be used only to corroborate the testimony of these witnesses.

An identical question had arisen before this Court in Criminal Appeal No. 174-SB of 1995 (Sukhpal Singh alias Kuku v. The State of Haryana), decided on March 20,1996 Reported in (1976) 2 RCR 751 P&H. After noticing the law laid down by the apex Court in Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, , it was held as under :-

From a bare perusal of the law laid down by the apex Court, it is clear that the substantive evidence is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate, and that the said person had given a specific option. If no evidence in this respect is given by the Officer conducting the search or the witness present at that time, it cannot be said that the mandatory provisions of Section 50 have been complied with. As already stated, the contemporaneous record Exhibit PD and Exhibit PE prepared at that time is not substantive piece of evidence and can be utilised for limited purpose of either refreshing memory of the officer who prepared it or to corroborate his testimony and the testimony of the witness who had attested the same.

As already discussed above, none of the three prosecution witnesses has deposed on oath in the Court that the appellant was either apprised or was given an offer that he could be searched either before a Magistrate or a Gazetted Officer. Therefore, the necessary conclusion is that the provisions of Section 50 of the Act were not complied with in this case before conducting the alleged search. This serious flaw in itself is fatal to the prosecution case.

As regards the second contention raised by the learned counsel for the appellant, it may be pointed out that Section 55 of the Act enjoins a duty on an Officer Incharge of the Police to receive and keep the goods and articles seized under this Act within the local area of the Police Station. He is also required to affix his own seal to all the samples. The clear intention of the Legislature was a fair investigation by putting the seized material beyond the reach of the seizing officer, and by eliminating the possibility of the sample being tampered with till the same reached the hands of the Chemical Examiner. When the prosecution has failed to rule out the possibility of tampering with the sample, its case becomes a suspect.

In the present case, according to the testimony of S. I. Nirmal Singh (PW-2) who is the Investigating Officer S. I. Surinder Singh (PW-3) and DSP Ravi Bhushan (PW-5), the sample parcel and the other parcel were sealed with the seals of ''NS'' and ''RBJ''. In other words, the sample parcel contained two seals of the initials of S. I. Nirmal Singh, Investigating Officer and DSP Brij Bhushan who was present on the spot. S. I. Surinder Singh (PW-3) who was the Officer Incharge of the Police Station that day has not deposed anywhere either in his examination-in-chief or cross-examination that he had ever affixed his own seal to the sample parcel before it was deposited in the Malkhana. Strangely enough, Surjit Singh (PW-4), Moharrir Head Constable has deposed that on 23-7-1994 the case property was kept in the Malkhana by the SHO Surinder Singh which was having the seals of ''NS'', ''SS'' and ''RBJ''. It is interesting to note that according to the testimony of Constable Satpal Singh (PW-1), he had taken the sealed sample parcel from the Moharrir Malkhana on 16-8-1994 which was having the seals of ''NS'' and ''RBJ'' and had deposited the same in the office of the Chemical Examiner. Exhibit PF is the report of the Chemical Examiner. On the forwarding letter contained thereon, the description of the seals used on the articles is as ''RBJ'' and ''NS''. In other words, the sample parcel received in the office of the Chemical Examiner did not bear the seal of ''SS''. It is also interesting to note that in his cross-examination S. I. Surinder Singh (PW-3) has admitted that the case property which was produced during his examination in the Court, had three seals on it. Thus, the evidence produced by the prosecution shows the sample parcel which was sealed at the spot is quite different from the one which was deposited in the Malkhana and still further quite different from the one received by the officer of the Chemical Examiner. This fact also costs a grave doubt on the case of the prosecution.

Coming to the last contention the learned counsel for the appellant, I agree that non-production of Shri Shabeg Singh, who was allegedly an independent public witness to the whole case, also strikes at the root of the prosecution case. In the first instance, he appears to be an introduced witness by the police and his presence on the spot is highly doubtful. This inference is evident from the recovery memo. Exhibit PB and its photo-copy Exhibit DA supplied to the accused before the commencement of the trial. From a bare perusal of these two documents, it is clear to a naked eye that the name of Shabeg Singh has been introduced later on at Sr. No. 2 although in the original memo Exhibit PB Shri Surinder Singh S. I. SHO was at Sr. No. 2, which fact is fully supported by the photo-copy Exhibit DA supplied to the appellant before the commencement of the trial. Further, if Shabeg Singh had been present at the time when the appellant is alleged to have been detained and an offer was given to him regarding his search, the reply Exhibit PA alleged to have been given by the appellant ought to bear the signature of Shabeg Singh.

Still further, if Shri Shabeg Singh had been present at the spot at the time of the alleged search and recovery, it was but natural to hand over the seals after use to him and not to Surinder Singh (PW-3), the SHO to whom the case property was also entrusted. It is quite illogical that the seals after use would be handed over to the same officer to whom the case property has also been entrusted, particularly at a time when an independent public witness is present and available on the spot. This fact further creates a grave dent in the prosecution case.

For the foregoing reasons, I hold that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Consequently, this appeal succeeds. The conviction and sentence of the appellant are hereby set aside and he is acquitted of the charge u/s 18 of the Act. The appellant, shall be released from custody forthwith, if not wanted in any other case.