Jagjit Singh vs State of Punjab

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 4th February, 1997 passed by the Court of Additional Sessions Judge, Amritsar, who convicted appellant Jagjit Singh under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short `the Act'') and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for a period of one year.

Brief facts of the case are that on 10th September, 1995 Suba Singh Inspector/SHO of Police Station Valtoha along with other police officials, including Head Constable Surinder Singh and SPO Bohar Singh, was going in a Government Gypsy being driven by Constable Hira Singh, towards village Gharyaia from Valtoha. When the Police Party reached at the Bus Stand of village Punia, they met Swaran Singh, ASI, and other police officials, who were also joined in the Police Party. Thereafter, the Police Party went towards village Punia. Bhajan Singh PW met the Police Party on the way and he was also associated. Thereafter the Police Party held a Nakabandi on the Kacha Rasta leading from village Punia towards Kalsian on the bridge of canal minor. The accused was spotted approaching on the eastern Patri (bank) of the said canal minor. When the accused reached near the Naka Party, he was given signal with torch light to stop. Upon this, the appellant retraced his steps and tried to run away. On the basis of suspicion, he was intercepted. At that time the appellant was carrying a gunny bag in his right hand. He disclosed to the Police Party that he was carrying opium in the bag. The Investigating Officer gave option to the appellant for search either before a Gazetted Officer or a Magistrate but the appellant told the Investigating Officer that he may do according to his wishes. Thereafter the wireless message was sent to Shri Baljit Singh, DSP, Bhikhiwind, who reached the spot and disclosed his identity to the accused. He also offered to the accused to tell whether he wanted to give the search before him or a Magistrate. The accused expressed his full faith in the DSP. Thereafter Shri Baljit Singh, DSP, directed Shri Suba Singh PW to carry out the search of the accused. The search of the bag (Ex. P1) revealed opium duly wrapped in a glazed paper. On weighment it came out to be 5 kgs., out of which 20 grams of opium was separated as sample and made into a parcel after putting the same in a Dibbi of tin. The remaining opium was put into a plastic Dabba along with the glazed paper and the same was made into a parcel. The entire case property was then sealed with the seal of Shri Baljit Singh, bearing inscription `BS'', and another seal bearing inscription `SS'' belonging to Suba Singh PW. Shri Suba Singh handed over his own seal to ASI Swaran Singh, whereas the DSP retained his own seal with him. The entire case property was taken into possession vide recovery memo. (Ex. PA), which was attested by DSP Baljit Singh, ASI Swaran Singh, and Bhajan Singh independent witness. The additional personal search of the accused did not yield anything. A separate memo. (Ex. PB) to this effect was prepared. Ruqa (Ex. PD) was sent to the Police Station where formal FIR (Exhibit PD/1) was recorded. The visual site plan (Ex. PE) was prepared and statements of the witnesses were recorded. The grounds of arrest were supplied to the accused vide memo. Ex. PC. On return to the Police Station, the case property, including the sample parcel and the sample seal, were kept by Shri Suba Singh PW in his own custody in the Malkhana. On the next day, he sent the accused along with the case property to the Court of Illaqa Magistrate through Shri Jaswant Singh, Head Constable, who on his return, delivered back the case property to Suba Singh PW and the latter retained the same in his own custody. The Chemical Examiner vide his report Ex. PG opined that the contents of the sample parcel were of opium. On receipt of this report of the Chemical Examiner and on completion of the investigation, the accused was chargesheeted in the Court of the Illaqa Magistrate, who supplied the copies of the documents to the accused and vide commitment order dated 19th February, 1996, committed the accused to the Court of Session to face the trial under Section 18 of the Act. The Additional Sessions Judge, Amritsar, vide order dated 18th March, 1996 charged the accused under Section 18 of the Act, alleging against the appellant that on 19th September, 1995 in the area of village Punia, he was allegedly found in possession of opium weighing 5 kgs. without any valid permit or licence, and thereby he allegedly committed an offence under Section 18 of the Act. The charge was read over and explained to the accused, to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined PW1 Constable Gurmit Singh, ASI Swaran Singh (PW2), Inspector Suba Singh (PW3), DSP Baljit Singh (PW4) and Lance Constable Jaswant Singh (PW5). Inspector Swaran Singh was given up as unnecessary and independent witness Bhajan Singh was also not examined by the prosecution in the trial Court.

The statement of the accused was recorded under Section 313, Cr.P.C., and all the incriminating circumstances appearing in the case of the prosecution were put to him. The accused denied all these circumstances and pleaded innocence and false implication. He took up the plea that he was innocent and nothing was recovered from him. He further deposed that he was arrested from his house and he was kept in illegal detention for many days in the Police Station and later on he was falsely involved in this case due to party faction in the village. When called upon to enter into his defence, the accused examined DW1 Piara Singh and DW2 Moharrir Head Constable Gurinder Singh.

Learned trial Court relied upon the story of the prosecution and convicted and sentenced the appellant in the manner stated above by rejecting the defence version.

Aggrieved by his conviction and sentence, the appellant has filed the present appeal, which I am disposing of with the assistance rendered by Shri Satbir Singh, Advocate, appearing on behalf of the appellant; and Shri J.S. Brar, Deputy Advocate General, Punjab, who appeared on behalf of the State.

It may be mentioned here that the present appellant submitted an application before Hon''ble the Chief Justice that since he is a patient of AIDS, his appeal may be heard at the earliest as he does not want to die with a stigma. The Hon''ble Chief Justice vide order dated 3rd July, 1998 listed this appeal for hearing for today and as per roster this appeal has been assigned to me for disposal.

Learned counsel for the appellant submitted that the mandatory provisions of Section 50 of the Act have not complied with on behalf of the prosecution/Investigating Officer and in these circumstances the appellant is liable to be acquitted.

On the contrary, the learned counsel appearing on behalf of the State submitted that the provisions of Section 50 of the Act have been complied with because the search of the appellant had been conducted in the presence of Shri Baljit Singh, DSP. The learned counsel appearing on behalf of the State submitted that though the provisions of Section 50 of the Act have not been complied with strictly, yet no prejudice has been caused to the appellant because the search of the appellant had been conducted in the presence of an independent person also.

I do not subscribe to the argument raised by the learned counsel for the respondent. The independent witness in this case was Bhajan Singh, who has not been examined by the prosecution. In these circumstances it has to be seen whether the provisions of Section 50 of the Act have been complied with by the Investigating Officer or not. First of all, it has to be decided, who is the Investigating Officer. I will deal with this appeal from both angles. Firstly, I will assume that Shri Suba Singh, SHO, Police Station Valtoha, who was the Incharge of the Police Party, was the Investigating Officer. It was he who detected the appellant on that night and it was disclosed to Shri Suba Singh by the appellant that he was carrying opium in the gunny bag. In these circumstances at that time the Section 50 of the Act assumes obligation as per the mandate of the Hon''ble Supreme court in the famous case State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 736. Shri Suba Singh has also disclosed that the accused disclosed that there was opium in the gunny bag. As per this witness, he inquired from the accused whether he wanted to give search in the presence of a Gazetted Officer or a Magistrate. Firstly, no notice in writing has been given to the appellant by Shri Suba Singh to the effect whether the appellant wanted to give his search in the presence of a Magistrate or a Gazetted Officer. It is correct that it is not provided that the written notice is necessary. Now the point for determination arises whether it should be believed by the Court that the appellant reposed confidence in the Investigating Officer to do whatever he wished. Firstly, in all probability the appellant would not repose confidence in the Thanedar. He would try to delay the things. If it is assumed for the sake of argument that the appellant being nervous, gave consent in favour of Shri Suba Singh, then what was the hitch on the part of Shri Suba Singh not to record the statement of the appellant to that effect ? The nonrecording of the statement of the accused by Shri Suba Singh is fatal to the case of the prosecution, especially when the independent witness in this case has not been examined by the prosecution. Section 50 has been introduced in the NDPS Act with a specific purpose. The object of the Legislature was to give protection to the accusedappellant as the prosecution wanted to secure a conviction against him and a sentence of minimum 10 years for him. In these circumstances the law expects a very heavy proof from the side of the prosecution for the proving of the offence. Shri Suba Singh, SHO, thus has not complied with the provisions of Section 50 of the Act. He simply called Shri Baljit Singh, DSP, through wireless message and the DSP arrived at the spot. Now it is to be assumed that Shri Baljit Singh, DSP, was the Investigating Officer. According to this witness, he reached the spot within 30 minutes after receiving the wireless message. He disclosed his identity to the accused and he also inquired from the accused if he wanted to be searched from him or from the Magistrate. This witness also does not record any statement of the accused, like Shri Suba Singh. This witness also does not give complete option, as required under Section 50 of the Act. Shri Baljit Singh has confined the option either to himself or to some Magistrate. As per Section 50 of the Act, the accused can exercise his option for any of the persons as mentioned in Section 42 of the Act. The Act prescribes the procedure of seizure in a particular manner. When the Legislature expects that a particular act should be done in a particular manner, it must be done in that very manner and not in any other manner. Even from the statement of Shri Baljit Singh it is quite clear that the provisions of Section 50 of the Act have not been complied with, rendering the entire recovery of the opium as illegal.

This appeal is also required to succeed on the ground that the link evidence is missing. The case property was handled by the Moharrir Head Constable of the Police Station and there is no statement of this witness on the record. There is no satisfactory reply from the side of the State on this aspect.

Resultantly, I allow this appeal, set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him.

Intimation about the acceptance of this appeal be given to the Superintendent, District Jail, Amritsar, so that the appellant be released from jail forthwith, if not wanted or convicted in any other case.

The appeal is allowed.