Jagtar Singh vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgment/order dated January 30, 1996, passed by the Additional Sessions Judge, Ferozepur, whereby the appellant has been convicted under section 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/ and in default of payment of fine to further undergo rigorous imprisonment for six months.

The facts leading to this appeal are that on May 30, 1990, SI Major Singh (PW 2), along with other police officials was going in a police vehicle to conduct raids on the Dhanis situated in the area of Dhippan Wali. When the police party reached near the canal bridge within the area of the said village, the appellant was spotted while going on the right track of the canal while having a Jhola in his right hand. On seeing the police partly, the appellant started walking briskly. Suspicion having arisen, the appellant was stopped and detained. S.I. Major Singh (PW2) told the appellant that he (PW2) had a doubt that the appellant was carrying opium in his Jhola and he wanted to search him. Offer was given to the appellant that if he so desired, he could be searched in the presence of a Gazetteed Officer or a Magistrate. The appellant declined the offer and reposed confidence in the said S.I. (PW2). Consentmemo was prepared. On conducting search of the bag, opium weighing 2 Kgs. 20 grams, wrapped in a glazed paper, was recovered from the bag. 20 Grams of Opium was separated by way of sample. The sample and to remaining opium were converted into two separate sealed parcels with the seal of ''MS''. Sample seal was also prepared and the seal after use was handed over to ASI Surat Singh, a member of the raiding party. A ruqa was sent to the Police Station, on the basis of which formal F.I.R. of this case Exhibit PG/1 was recorded. The appellant as well as the case property were produced before the officiating Incharge of the Police Station, ASI Pirthi Singh who put his own seal on both the parcels and took the same in his possession. The accused and the case property were produced before the Magistrate the next day with a request that the Magistrate should put his signatures on the parcels but he declined to do so and, therefore, the case property was deposited on May 31, 1990 with the Moharrir Malkhana. Sample parcel was sent to the office of the Forensic Science Laboratory. After the receipt of the report and completing the investigation, a chargesheet was submitted to the Court against the appellant.

A charge under section 18 of the Act was framed against the appellant which he denied and claimed to be tried.

In support of its case the prosecution examined 3 witnesses. SI Surat Singh (PW 1) was a member of the raiding party. SI Major Singh (PW 2) is the Investigating Officer. SI Pirthi Singh (PW 3) was officiating as S.H.O. on the day of occurrence before whom the accused and the case property were produced and who had taken the case property into his possession. Affidavit of MHC Baldev singh (Exhibit PJ), Affidavit (Exhibit PK) of Constable Prithi Raj and the report of the Chemical Examiner (Exhibit PL) were tendered in evidence.

In his examination under section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded false implication. He has examined three witnesses in his defence. Karnail Singh (DW 1) was an official of Posts and Telegraphs Office, Malout, who could not produce the summoned report since the same had been destroyed. However, Gurmohan Singh (DW 3), Ahalmad in the Court of Judicial Magistrate, Gidderbaha produced the record i.e. telegram (Exhibit DB) which was received in the office of the said Judicial Magistrate on May 22, 1990 at 5.00 p.m. Mal Singh (DW2) has deposed that on May 22, 1990 at about 7.15 a.m. the police had taken away the appellant along with one attachecase and two bags containing papers with them and on enquiry it was disclosed that the appellant was wanted by the Officer Incharge of the Police Station.

On an appraisal of the evidence produced by the parties, the Additional Sessions Judge found the appellant guilty of an offence under section 18 of the Act and convicted and sentenced him as stated above. Hence this appeal.

I have heard the learned counsel for the parties and have also perused the record.

Shri M.L. Merchea, learned counsel for the appellant has raised several contentions in assailing the judgment under appeal. However, I do not propose to deal with all the contentions raised, as it will not be necessary in view of the fact that one of the contentions finds acceptance with me. That contention is that this Court should not uphold the conviction of the appellant which is solely based on recovery made as a result of search not witnessed by independent and respectable persons when the Investigating Officer had the time, opportunity and means at his hands to procure independent public persons to witness the alleged search of the appellant.

To appreciate the aforesaid contention, it may be pointed out that in the first information report (Exhibit PG/1) it is stated that SI Major Singh (PW 2) had told that he had a suspicion that the appellant was carrying opium in his Jhola. But when he came into the witness box, he deposed that he had told that he had a suspicion that the appellant was carrying some incriminating article in his Jhola. It is highly improbable that SI Major Singh or any one of his companion could have imagined that the appellant was carrying opium in his Jhola at the time when he was stopped and detained. According to SI Surat Singh (PW 1) and SI Major Singh (PW 2), the place of occurrence is situated near village Dhippanwali and the busstand is located at a distance of about 8 to 10 Karams. Village Gharyana is situated at a distance of 7 to 8 Kms. from the place of recovery. It is also not disputed that the Police Station in question is situated at a distance of 18 Kms. from the place of recovery. According to the said witnesses, Constable Tehal Singh was sent to bring weights and scales from village Dhippanwali and also to bring independent public persons from the village to witness the search of the appellant. But strange enough, the prosecution has not produced and examined Constable Tehal Singh to corroborate the witnesses of these two witnesses. Therefore, the testimony of S.I. Surat Singh (PW 1) and SI Major Singh (PW 2) to the effect that Constable Tehal Singh had informed that no person from village Dhippanwali was ready to join the investigation is merely hearsay and cannot be taken into consideration at all. There is not an iota of evidence on the record to show that any effort was made by SI Major Singh (PW 2) to procure independent public persons before conducting the search of the appellant. It is the case of the prosecution that the police party consisted of 3 Assistant SubInspectors one Head Constable and five constables. The time of the alleged recovery was 9.00 a.m. In other words, SI Major Singh (PW 2) had the time, opportunity and means at his hands to procure the presence of independent public persons to witness the search of the appellant conducted by the said Investigating Officer.

At the conclusion of the trial, the prosecution can succeed only on discharging the initial burden of proving its case against the accused, and strongest of suspicion does not constitute the proof required. Even though the statute does not make it obligatory, as a rule of prudence, the Police Officer should carry out the search, if it is possible to secure the presence of independent persons in their presence. The Court will be extremely reluctant to uphold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and improbable to procure the presence of such witnesses. In the present case, there is no reliable and credible evidence on the record to show that SI Major Singh (PW 2) had made any genuine efforts to call for independent public persons to witness the search of the appellant, particularly when the time, place and the circumstances were such that independent witnesses were easily available. This serious omission on the part of the said Investigating Officer in itself is enough to cast a grave suspicion as regards the alleged recovery from the possession of the appellant. For this reason alone, the conviction and sentence of the appellant are liable to be set aside.

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 set aside and he is acquitted of the charge under section 18 of the Act. The appellant shall be released forthwith, if not wanted in any other case.