Jaswant vs State of Haryana

S.S. Sudhalkar, J.

The abovementioned Crl. Appeals were heard together and are disposed of by this common judgment. The appellants herein have filed these appeals against the judgment and order of conviction and sentence passd by the learned Additional Sessions Judge, Hisar in Sessions Case No. 6 of 1993, for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinaftes referred to as the N.D.P.S. Act). They were sentenced to undergo rigorous imprisonment for a period of 10 years and a fine of Rs. 1,00,000/ each.

The case of the prosecution is that on 25.3.1989, ASI Hans Raj of C.I.A. Staff, Fatehabad was present at `Y'' point near FatehabadHanspur road. He was accompanied by H.C. Raj Singh and five other Constables. The police party travelled up to that point by a private jeep driven by Ved Parkash. A truck bearing registration No. HRJ8413 came there from Fatehabad side. Hans Raj ASI signalled the vehicle to stop and he got it stopped. The appellants were found in the truck. There was another person by the name of Roop Chand, who was sitting on the top of the front side of the vehicle. When ASI Hans Raj was engaged in conversation with driver of the truck (appellant Jaswant Singh), the person sitting on the top of the front side of the truck got down and disappeared into the roadside fields. He could not be apprehended in spite of a hot chase given by a Constable.

ASI Hans Raj served notice on the appellants requiring them to indicate if they wanted the search of the vehicle to be conducted in the presence of a Magistrate or a Gazetted Officer. The appellants indicated that they had no objection if ASI Hans Raj himself proceeded to conduct the search. During the search 125 gunny bags containing poppy husk were found being carried in the truck. Each bag was found to contain 40 kgs. of poppy husk. All formalities were carried out by the police party.

During the trial, Prosecution examined the following witnesses:

(1) P.W.1 Dr. P.L. Verma

(2) P.W.2 S.I./S.H.O. Om Parkash

(30 P.W.3 Ved Parkash

(4) P.W.4 H.C. Raj Singh

(5) P.W.5 A.S.I. Hans Raj

Out of these witnesses, P.W.3 Ved Parkash was driver of a private jeep. The learned counsel for the appellants have raised following points during their arguments:

(1) that the offer regarding search was a joint offer and cannot be said to be proper or valid,

(2) that the said offer was a partial offer,

(3) the memo Ex.PN regarding the offer did not find mention in the statements of P.W.4 and P.W.5.

Basing arguments on these points, the learned counsel for the appellants argued that appellants could not be convicted and, therefore, these appeals be allowed and the conviction of the appellants be set aside.

Regarding the first point, the learned counsel for the appellants have relied on the judgment in the case of Paramjit Singh and another v. State of Punjab, 1996(3) All India Criminal Law Reporter 729. Regarding the joint offer to the appellants for search, it has been observed by this Court in paragraph 9 of the aforesaid judgment as under :

"Both Jaspal Singh Officerincharge of Police Station PW2 and Rabi Singh ASI PW1 stated that appeallants were told that the trolley was to be searched and if they like it can be done in presence of a Gazetted Officer or a Magistrate. Both reposed confidence in the Investigating Officer. In the peculiar facts it is difficult to believe that such an offer had been given. Not only no independent witnesses were present but it is difficult to believe that offer was given jointly and the answer also given in a similar manner. Necessarily, the offer must be given to each of the accused individually that if he likes the services of a Gazetted Officer or a Magistrate can be procured. It has not been done. It makes one conclude that the said assertion of the prosecution was makebelief rather than genuine. It is, therefore, difficult to hold that there was compliance of the provisions of subsection (1) of Section 50 of the Act."

Ex.PN is a composite memo of the offer regarding search made to the appellants.

Regarding the second point, the learned counsel for the appellants have argued that the offer regarding search was a partial offer inasmuch as it did not indicate any offer being made by the police for search before a Magistrate. ASI Hans RajPW5 has stated in his deposition that he served notice Ex.PN on the accused requiring them to indicate if they wanted the search to be conducted by a Magistrate or a Gazetted Officer. He was confronted with his statement before SHO where he has not mentioned that he had given the option to the accused in writing. Moreover, Ex.PN, which is the alleged offer shows that the appellants were told that this witness had doubt that the truck was laden with articles prohibited under the N.D.P.S. Act and that he wanted the search and whether the search of the truck be carried out before any `G/O'' so that he could be called on the spot. It is further mentioned in it that on this offer being made, the appellants refused to any search before any Magistrate or `G/O''.

So, it is apparent from Ex.PN that when the offer was made it was not mentioned whether the appellants wanted to be searched before a Magistrate though in the alleged reply by the appellants they have so stated.

The learned counsel for the appellants have, therefore, been able to establish that the alleged offer was a joint offer and did not contain any offer for being searched befoe the Magistrate. The learned counsel have argued that actually no offer was made and that Ex.PN is a got up one. Moreover, in the statement before the S.H.O., ASI Hans Raj has not stated that it was recorded that offer was given. PW 4 Raj Singh, H.C. (now retired) has stated that he did not remember the factum of Ex.PN having been prepared, in his statement before the police, and attention of this witness was drawn to explain and he could not explain it.

With these infirmities, it has to be seen whether the evidence against the appellants can be treated as reliable.

P.W. 3 Ved Parkash, who has been examined as an independent witness has not supported the prosecution and has been declared hostile.

In the N.D.P.S. Act the sentences prescribed are stringent and, therefore, strict proof is required to prove such offences. The above discrepancies coupled with the independent witness not supporting leads to a doubt regarding the case of the prosecution against the appellants. A case may be different if processed narcotic articles are recovered. In the case like the present one, it can be seen that the investigation has been carried out in a casual manner and, therefore, I find it proper to give benefit of doubt to the appellants.

As a result, these appeals are allowed. The convictions and sentence of the appellants are set aside and the appellants are acquitted of the charges against them. They are ordered to be set at liberty if not required to be detained in any other case. Fine, if paid, is ordered to be repaid.

Appeals allowed.