Jagir Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Jagir Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Sessions Judge, Faridkot dated 3.11.1995. By virtue of the impugned judgment, the learned trial Court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). By the subsequent order of sentence passed by the trial court, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, the appellant was directed to undergo further rigorous imprisonment for two years.

The relevant facts are that on 27.6.1994 Jagmohan Singh was Officerin Charge, Police Station Mehna. He was heading a patrolling party and was going from village Mehna towards village Takhanwadh via Kacha path. The police party was at a distance of about 1 Kilometre from village Takhanwadh. The appellant was noticed coming from the side of said village. On suspicion, the appellant was stopped by the police party. He was told that if he likes his person can be searched before a Gazetted Officer or a Magistrate. The appellant opted to be searched before a Gazetted Officer of the Police. Shri Narinder Pal Singh, Superintendent of Police, Moga was called to the spot through a wireless message.

In presence of Shri Narinder Pal Singh, the search of the bag of the appellant was effected. It was found to be containing opium. The contents were weighed and found to be 5 Kilograms. 10 grams was taken as the representative sample. The representative sample and rest of the opium were converted into two separate parcels and sealed with the seals of ''JS'' and ''NPS'' belonging to Inspector Jagmohan Singh and Narinder Pal Singh, Superintendent of Police. Both the parcels were taken into possession vide a recovery memo. The appellant was arrested. The grounds of arrest were disclosed to him. Ruqa was sent to the police station, on the basis of which formal First Information Report was recorded. Rough site plan was prepared by the Investigating Officer. On return to the police station Inspector Jagmohan Singh deposited the case property in the Malkhana. Subsequently, the representative sample was sent for chemical analysis. On receipt of the report that it was opium, challan as against the appellant was filed.

The learned trial court framed charge against the appellant for the offence punishable under Section 18 of the Act. The appellant pleaded not guilty and claimed a trial. In support of its case, the prosecution examined Inspector Jagmohan Singh as PW2, Mohan Lal PW4 and Shri Narinder Pal Singh, Superintendent of Police PW6 besides other formal witnesses. After the prosecution had closed its evidence, the incriminating circumstances appearing in evidence were put to the appellant in the form of different questions. The appellant denied recovery of opium from his person. The appellant''s case was that on 19.6.1994 he was brought from his village in the morning and was detained in illegal custody. The opium was planted upon him. In defence, the appellant examined Bhinder Lal as DW1 a constable of Police Station, Mehna. The witness had brought Register No. XIX. He stated that there is no separate entry in the said register that the sample was sent to the Chemical Examiner on 26.7.1994 but there is a note to that effect against the entry whereby the case property was deposited in the Malkhana.

The learned trial court discussed the contentions of the parties and held that it had been established to the effect that opium was recovered from the appellant. The trial court held that minor discrepancies will not prove fatal to the prosecution case. It was also concluded that there has been compliance of the provisions of Section 50 of the Act. With these findings, the impugned judgment and the order of sentence were passed.

It was urged that provisions of SubSection (1) of Section 50 of the Act had not been complied with. To appreciate the said argument, reference may be made to subsection (1) of Section 50 of the Act which reads :

"30(1). When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate."

The provision referred to above clearly shows that option has to be given to the concerned person that if he likes, the search can be effected in presence of a Gazetted Officer or a Magistrate. The said provision is mandatory and to the same effect is the decision of the Supreme Court in the case State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : JT 1994(2) SC 108. In the present case, the appellant is alleged to have opted that search be effected in presence of a Gazetted Officer of the Police. In accordance with the said option, Superintendent of Police, Moga, Shri Narinder Pal Singh had been called. He appeared as PW6 and stated that search was effected in his presence. During crossexamination it was challenged that he was not a Gazetted Officer. He admitted that he is a substantive Deputy Superintendent of Police and is working as Superintendent of Police on ad hoc basis. He denied that on 27.6.1994, he was working only intherank and pay of an Inspector. He admitted that 7 or 8 months earlier he was given the rank of Deputy Superintendent of Police on ad hoc basis. The reading of the statement of the witness clearly shows that he became Deputy Superintendent of Police on substantive basis in the year 1995 only. In June, 1994, therefore, he was only in the rank of an Inspector. No gazette has been produced to show that in fact he was a Gazetted Officer. This conclusion that Shri Narinder Pal Singh was not a Gazetted Officer finds support from copy of the judgment of learned Sessions Judge, Faridkot in case State v. Daljit Singh, copy of which is Ex. DA. In that case the incident pertains to 18.3.1994. It was conceded before the learned Sessions Judge that Shri Narinder Pal Singh was not a Gazetted Officer on that date. The conclusions arrived at were :

"So concededly Shri Narinder Pal Singh is ad hoc Inspector though he was promoted to work on ad hoc basis as DSP and then as Superintendent of Police. It was conceded on behalf of the State by the learned Public Prosecutor that Shri Narinderpal Singh is not a Gazetted Officer. So even his alleged presence at the time of recovery could not take away the valuable right of the accused to be given offer as contemplated under Section 50 of the Act."

The above facts clearly show that not only it has already been adjudicated that on the relevant date Narinder Pal Singh was not a Gazetted Officer but in the present case even on basis of the statement of Narinder Pal Singh itself, it is clear that he was not a Gazetted Officer on 27.6.1994. Once if the findings are returned that Narinder Pal Singh was not a Gazetted Officer, it follows automatically that search was not in accordance with the provisions of subsection (1) of Section 50 of the Act and, therefore, would be illegal.

Besides that it transpires in the testimonies of the witnesses that the evidence of recovery comprises solely of official witnesses, namely Jagmohan Singh PW2 and Narinder Pal Singh PW6. They both stated that public witnesses were not available. It is admitted that a constable was sent to fetch the weights and scale from the village but none was sent to bring the public persons. In the facts of the present case, keeping in view the aforesaid, it must follow that no genuine attempt was made to join the public witnesses. Joining of a public witness may not be mandatory. However, to ensure and lend credibility as a rule of prudence, Courts have insisted that public witnesses should be joined. Otherwise, a reasonable explanation should be forthcoming as to why public witnesses have not been joined. The explanation as referred to above already so given is totally unsatisfactory. A person had been sent to the village to fetch weights and scale. It is strange still that no attempt was made to get a public witness in this regard. The village was just about 1 kilometre away. It is obvious from aforesaid, therefore, that what is being stated by the official witness Inspector Jagmohan Singh cannot be accepted. This is for the added reason that Inspector Jagmohan Singh further stated that he deposited the case property with MHC Gurjant Singh. MHC Gurjant Singh had tendered his affidavit Ex. PG. As per his affidavit it was ASI Mohan Lal who deposited the case property in the Malkhana. The conclusion, therefore, is obvious that in the absence of a public witness, the statements are forthcoming which are not reliable and trustworthy. It would be improper to rely on their testimonies and base any order of conviction.

Yet another link in the prosecution evidence is about care having not been taken in sending the representative sample for chemical analysis within time and also to ensure that there is no tampering with it. It transpires from the affidavits of MHC Gurjant Singh and also of C. Balraj PW1 that representative sample was given to C. Balraj on 21.7.1994. There were certain objections and the sample was brought back. It was again sent through C. Darshan Singh on 26.7.1994 but the report of the Chemical Analyst shows that C. Balraj had brought the representative sample. In these circumstances, it would have been more appropriate to explain the discrepancy by calling an appropriate witness to show the same and remove the anomaly. It has not been done. It becomes a guesswork as to who deposited the representative sample. In face of such events, chances of tampering the case property cannot be ruled out. The appellant, thus, is entitled to the benefit of doubt.

Cumulative effect of all these factors is that appeal is accepted. The judgment and the order of sentence passed by the learned trial court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released if not required in any other case.