Jaswant Singh vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal filed by Jaswant Singh son of Sardul Singh and has been directed against the judgment dated 24.7.1987 and order dated 27.7.1987 passed by Addl. Sessions Judge, Sirsa, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act'') and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to further undergo RI for a period of one year.

The brief facts of the case are that on 8.3.1986 a police party headed by ASI Shri Krishan along with HC Babu Lal, Constable Krishan Lal and Constable Bajrang Dass was present at bus stand, Chautala on G.T. Road for the purpose of patrolling and crime checking. When the police party was talking with cash other, appellant Jaswant Singh came there on foot from the side of village Sangaria and at that time he was carrying a bag in his right hand. He was proceeding towards bus stand Chautala and on seeing the police party he tried to take a turn, but on the basis of suspicion he was apprehended by the Thanedar in the presence of other members of the police party. Personal search of the accused was taken as per procedure, as a result of which opium wrapped in a wax paper was recovered from the red and white stripped bag of plastic having two straps which the accused was carrying in his right hand. On weighment, the opium came to 3 Kgs. The Thanedar separated 50 grams of opium by way of sample and made a sealed parcel thereof in a small empty tin box. The entire case property was taken into possession. The Thanedar used the seal bearing inscription `SK'' for sealing the case property. Sample seal was also preserved and the seal after use was handed over to HC Babu Lal. The accused could not produce any licence or permit for the possession of the opium. Resultantly, ruqa was sent to the police station for the registration of case, on the basis of which formal F.I.R. under Section 18 of the Act was recorded. Finally, the sample of the opium was sent to the office of Chemical Examiner, who declared the contents as opium and on completion of other formalities of the case, accused was challaned in the court of Area Magistrate, who supplied the copies of the documents to the accused and vide commitment order dated 3.3.1987 committed the accused to the Court of Session.

Vide order dated 18.3.1987 accused was chargesheeted under Section 18 of the Act on the allegations that on 8.3.1986 in the area of village Chautala he kept in his possession 3 Kgs. of opium without any permit or licence and thereby he committed the offence. 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 HC Babu Lal PW1 and ASI Siri Kishan PW2. The prosecution also tendered into evidence affidavit Ex.PD of Ram Pal, affidavit Ex.PE of HC Satbir Singh, report of Chemical Examiner Ex.PF and closed the case.

On the closure of prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and stated that he has been falsely implicated in this case.

When called upon to enter into his defence, accused did not lead any evidence.

The learned trial court for the reasons given in para Nos. 7 to 10 of the judgment believed the story of the prosecution and rejected the defence version and convicted and sentenced the accused in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.

Before I deal with the submissions raised by the learned counsel for the appellant, I would like to quote in extenso the reasons which have been given by the learned trial court in convicting the appellant, as follows :

"7. The learned defence counsel addressed this court on three points. Firstly, it is urged that no independent witness was joined by the police party at the time of effecting search of the accused; secondly, that no note was given in any paper, regarding the explanation given by the two witnesses regarding the direction of ASI to inform S.H.O. about the facts of the case and the story put forth in this behalf is fake and fictitious; and thirdly there was violation of mandatory provision of law in this case. He urged that the independent witnesses were available to the police, because H.C. Babu Lal stated that many passengers were there in the bus in which they travelled upto bus adda Chautala. ASI Siri Kishan P.W.2 also stated that he had asked constable Krishan Lal to bring Sarpanch or lambardar from the village but that constable reported that none was ready to come. However, he did not mention this fact in the case diaries. The learned defence counsel referred to 1987 C.L.R. 524, Swaran Singh v. State of Punjab, where no independent witness was associated at the time of search by the police of the appellant who was found in possession of 20 Kg. of poppy husk. The recovery was effected from a place near the abadi. In those circumstances, the prosecution case was held not proved beyond reasonable doubt. The learned defence counsel also urged that keeping in view the stringent punishment prescribed under the Act, interests of justice do demand that before convicting the accused, no element of doubt creeps in and that corroboration of the search and recovery from the accused person, by some independent person go a long way in removing such doubt. The learned counsel for the accused relied upon 1985(1) RCR 74, Narain Singh v. State of Haryana, where inspector Bhoj Raj stated that he tried to join some persons from the village of the petitioner but they refused to do so. When he was asked as to whether he mentioned this fact in the zimnies, he refused to consult the ziminies. In those circumstances it was held that it could not be said that in fact he tried to join any person from the public. The facts of this ruling are different from the facts of the case in hand, as in the case supra the investigating officer tried to conceal the true facts but in the instant case ASI Siri Kishan frankly deposed that he did not give any note to this effect in the case diaries. I have gone though the statements of H.C. Babu Lal and ASI Siri Kishan and I do not find them unreliable. It is well settled that the testimony of the official witnesses is not to be doubted or discarded merely on the ground that they happen to be officials.

The learned counsel for the accused pointed out that P.W.1 has stated that many persons had alighted from the bus at bus adda and there were many persons in the bus. In the face of this evidence, it cannot be said that no independent witness was available. However, this contention cannot be accepted, as it is generally seen that the passengers are generally interested in reaching their destination rather than helping the police by joining the search and seizures. Moreover, such a huge quantity of opium cannot be planted in ordinary circumstances.

The learned defence counsel also urged that the explanation given by ASI Siri Kishan that he had asked the constable sent with the ruqqa to inform the S.H.O. and D.S.P. about the facts of this case, is false one as it does not find any mention in any document or case diary. This contention is repelled by the learned Public Prosecutor on the ground that the two police officials who are responsible persons cannot be disbelieved on this point and it is not essential or incumbent on any investigating officer to record each and every minor/minute details in the zimnies. I agree with this contention of the learned Public Prosecutor.

The learned defence counsel further urged that the police had no general or special powers to arrest or investigate a case under the Act. He referred to 1987(1) RCR 598, Karam Singh v. State of Punjab where it is given that only police officers specified and specifically empowered by the State Government through general or special order may arrest and search a person of the offence under Chapter IV of the Act. However, this ruling will not help the accused as section 74 of the Act meets with that contingency and under this provision the A.S.I. will be deemed to have been appointed under the relevant provision of this Act. As regards the production of the accused before a Gazetted Officer or the nearest Magistrate, ASI Siri Kishan has stated that he told the accused that he was to be searched and if he wanted to be searched by D.S.P. or any other Gazetted Officer, but the accused offered to be searched by him. Secondly, u/s 50 of the Act, the accused was to be taken to the nearest Gazetted Officer or the Magistrate, if the accused so desired. There is nothing on file to suggest that the accused desired the investigating officer to be taken to a gazetted officer or nearby Magistrate."

I have heard Mr. Sumeet Malhotra, Advocate on behalf of the appellant, Mr. Surinder Singh, Advocate on behalf of the State and with their assistance I have gone through the record of this case.

The first argument which was raised by the learned counsel for the appellant is that the mandatory provisions of Section 50 of the Act in this case have not been complied with and, therefore, the recovery and trial stand vitiated. In support of his contention the learned counsel has relied upon a judgment of the Hon''ble Supreme Court reported as JT 1999(3) SC 231, Thandi Ram v. State of Haryana, in which the Hon''ble Supreme Court placed reliance on two judgments State of Punjab v. Balbir Singh, JT 1994(2) SC 108 equal to 1994(1) Recent CR 736 and Mohinder Kumar v. State, Panaji, Goa, AIR 1995 SC 1157 equal to 1995(2) Recent CR 599. The Counsel stressed that the Hon''ble Supreme Court has held that Section 50 of the Act is applicable even in a case of chance recovery and, therefore, in the present case since the provisions of Section 50 have not been complied, the appellant is entitled to acquittal. On the contrary, the learned Advocate for the State submits that since it was a case of per chance recovery and that the Investigating Officer had no prior information and in these circumstances Section 50 is not applicable as held by the Hon''ble Supreme Court in Balbir Singh''s case (supra) and the judgment of Balbir Singh''s case (supra) has been affirmed by the Supreme Court in Thandi Ram''s case (supra). I have the occasion to consider all the three citations. If the judgment of the Hon''ble Supreme Court in Thandi Ram''s case (supra) is read between the lines, the Hon''ble Judge of the Apex Court reiterated the principles of Balbir Singh''s case and Mohinder Kumar''s case. Now we have to see that was said by the Hon''ble Judge of the Supreme Court in Balbir Singh''s case. The Hon''ble Judge dictated the entire gist of the judgment in para No. 27 and the first guideline given by His Lordship was as follows :

"If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirements thereunder would not arise."

It can be said otherwise that when the recovery has been effected from a person per chance and without any information on the part of the seizing officer, in that eventuality Section 50 would not come into play. The moment the Investigating Officer conceived a reasonable ground to believe that a person has committed an offence punishable under Chapter IV of the Act, from that stage Section 50 would come into play. Every case will depend upon its own facts and scenario and no uniform principle can be applied that in each and every case when a search is taken under peculiar circumstances of the case, Section 50 has to be complied with. In the ruqa there is no mention by the Investigating Officer that he conceived a reasonable belief that the appellant had committed an offence under Chapter IV of the Act. I may mention here that the present recovery falls under Section 43 of the Act. Section 50 will apply to those searches which are supposed to be taken by the Investigating Officer under Sections 41, 42 and 43. For every search Section 50 will not come into play. Section 50 will only come into play, in the opinion of this Court, if the Investigating Officer has conceived a reasonable ground to believe before taking the search that the person has committed an offence under Chapter IV of the Act. To strengthen my reasons, I can quote one illustration. Supposing a person is confronting a police officer and the belief of the police officer is that the person might be carrying a firearm or explosive substance or some instrument of robbery or dacoity, in such a situation, in the opinion of this court, Section 50 will not come into play because the police officer did not conceive a reasonable ground to believe that the person was carrying some narcotic drugs or psychotropic substance. It cannot be stretched always by the law courts that as and when a person is taking the search of another person, he must comply the provision of Section 50. The Hon''ble Supreme Court has laid down that every case will depend upon its own facts and circumstances and this observation was given by Their Lordships in State of Punjab v. Labh Singh, 1997(1) Recent C.R. 565.

Now it is to be seen what is the substantive evidence which has come on record and whether from that evidence the benefit can be granted to the appellant under Section 50 of the Act or not. PW1 is HC Babu Lal and the substantive portion of his statement can be reproduced as under :

"He was having a bag (Thaila) in his right hand. When he reached near the police, he became noplussed and returned all of a sudden. He was overpowered at a distance of 15/20 paces from us on the basis of a suspicion. ASI gave his search to him and then searched him personally. On search opium wrapped in wax paper was recovered from his thaila. It weighed 3 Kgs."

From the above statement of PW1 HC Babu Lal it is not discernible that the Investigating Officer or any member of the police party conceived a reasonable ground to believe that the appellant was carrying opium so as to attract the provisions of Section 50 of the Act. PW2 is Investigating Officer ASI Siri Kishan and his substantive statement is as follows :

"We were talking to each other there. In the meanwhile accused Jaswant Singh present in Court today appeared there from the side of village Sangria, on road. He was having a bag (Thaila) in his right hand. On suspicion he was overpowered. I told the accused that he was to be searched and if he wanted to be searched by me or I should call the SHO, DSP or any other officer. But the accused offered to be searched by me. Then on search I recovered opium wrapped in wax paper from his bag (Thaila). It was weighed and it came out to be 3 Kgs."

Even from the above, I am not in a position to draw a conclusion for the benefit of the appellant that the Investigating Officer had reason to believe that the appellant was carrying opium or narcotic drugs or psychotropic substance so as to constitute an offence under Chapter IV of the Act.

The learned counsel for the appellant submitted and pointedly draw my attention that the conduct of the Investigating Officer shows that he had conceived a reasonable ground to believe that the appellant was carrying some narcotic drugs punishable under Chapter IV and, therefore, Section 50 is attracted. I am not in a position to subscribe to the submission made by the counsel for the appellant for the reasons I have already stated above and I again refer to the illustration which I have given above. Therefore, I repel the first argument of the learned counsel for the appellant.

It was then submitted by the learned counsel for the appellant that the provisions of Sections 52 and 57 of the Act have not complied with and, therefore, a great prejudice has been caused to the appellant. I do not subscribe to this argument raised by the learned counsel for the appellant because in Balbir Singh''s case, 1994(1) RCR (Crl.) 737 (supra) in subpara (6) of para 27 of the judgment the Hon''ble Supreme Court has given the answer itself by stating as follows :

"The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is noncompliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

Thus a blanket advantage cannot be granted to the appellant on account of the noncompliance of Sections 52 and 57 of the Act. We have to see what prejudice has been caused to the appellant. The present is a case where the appellant was arrested purely by chance. A huge recovery of 3 Kgs. of opium was effected from him. The appellant in his statement under Section 313 Cr.P.C. has not come with any defence. Why the Investigating Officer would try to implicate innocent person for no reasons ? The appellant has not assigned any motive or animus either against PW1 HC Babu Lal or PW2 ASI Siri Kishan. He has not come with any reasonable defence from which I may be able to conclude that he has been falsely implicated. It is not evident on the record that the Investigating Officer had ample opportunity to associate an independent witness before effecting the search of the bag. In these circumstances, I repeal the second argument of the learned counsel for the appellant.

The third and last submission which was raised by the learned counsel for the appellant is that in this case no independent witness has been associated by the Investigating Officer and, therefore, the conviction cannot be based on the statements of two police officials. This is again not the correct position of the law, as stated by the learned counsel for the appellant. In Balbir Singh''s case (supra) the Hon''ble Supreme Court has itself stated that there is no bar in recording the conviction by relying upon the statements of police officers. The dictum of the Hon''ble Supreme Court was as follows in para No. 8 of the judgment :

"......It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the courts look for independent corroboration. This again depends on question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions......"

In State of Punjab v. Labh Singh (supra) the dictum of the Hon''ble Supreme Court was as follows :

"In view of the settled legal position that the accused has valuable right to be informed of his right to be searched in the presence of a Gazetted Officer, the search officer invariably would conduct the search subserving the salutary right given under Section 50. Each case should be considered in the light of the facts and circumstances in which the contraband was seized viz., time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport or place of concealment, whether there was proper opportunity to the police to secure the presence of a Gazetted Officer, whether the delay in search and seizure would result in the escape of the accused from arrest or contraband would be destroyed or whisked away and not of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The Court has to consider each case on its own setting."

If the Investigating Officer had tried to associate any person from the public after the arrest and after the search of the accused, no importance could be attached to the testimony of such a person because in that eventuality the recovery was not effected in the presence of such person. Moreover, I have already stated above that it is a case of huge recovery and it is not believable that the Investigating Officer would plant an opium weighing 3 Kgs. of considerable cost from his personal resources. Resultantly, I again repel the argument of the learned counsel for the appellant on point number 3.

No other point was raised before me.

In the light of above discussion, I do not see any merit in this appeal and dismiss the same.