Jaswant Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Jaswant Singh son of Gurdip Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Sessions Judge, Ferozepur dated 27.3.1995. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). On the same date, the appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One Lac. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for two years.

The relevant facts are that on 28.4.1993 ASI Baldev Singh accompanied by ASI Dinesh Singh, Constable Bachan Lal and some other police officials were patrolling. They were going from village Lohgarh to Badhowal via unmetalled road (katcha path). When the police party reached near the bridge over the canal, the appellant was seen coming alongwith the canal bank. He was carrying a gunny bag on his head. On seeing the police party, he turned back. On suspicion he was apprehended. ASI Baldev Singh told the appellant that he suspects him to be carrying some contraband articles.

An offer was given to the appellant that if he likes his person can be searched before a Gazetted Officer or a Magistrate. The appellant did not convey that his person be searched before a Gazetted Officer or a Magistrate. He deposed full faith in ASI Baldev Singh. Regarding the consent given by the appellant memo Ex. PA was prepared. It was thumb marked by the appellant and attested by ASI Dinesh Singh and Constable Bachan Lal.

The search of the gunny bag was effected by ASI Baldev Singh. It was found to be containing poppy husk. Out of the same 250 gram was taken as the sample. The total was weighed and found to be 30 Kilogram. The poppy husk was placed into the gunny bag. The sample and rest of the poppy husk were converted into two sealed parcels and sealed with the seal of ''BS''. Both the packets were taken into possession vide a recovery memo. Specimen of the seal was affixed and it was handed over to ASI Dinesh Singh.

ASI Baldev Singh sent the ruqa on the basis of which ASI Harbans Singh recorded the formal first information report and also prepared the rough site plan. When he came back to the police station, the officerincharge of the police station was not present. Since Baldev Singh was the senior most police officer, he kept the sample and the remaining poppy husk in his custody in the Malkhana. On 5.5.51993 the sample seal and the representative sample were sent to the Chemical Examiner. The report was received that it was poppy husk. This led to the filing of the challan in court.

The learned trial court framed a charge against the appellant for the offence punishable under section 15 of the Act. The appellant pleaded not guilty and claimed trial. In support of its case the prosecution examined ASI Baldev Singh and ASI Dinesh Singh as PW1 and PW2 respectively. The affidavit of Constable Bahadur Singh was tendered but the appellant did not seek the opportunity to crossexamine him. After closure of the prosecution evidence, the statement of the appellant was recorded. He denied recovery of poppy husk from his possession and pleaded innocence. In answer to question No. 20 he gave the following answer as his defence:

"Bohar Singh son of Raj Singh had a dispute with me regarding votes. Bohar Singh was working in collusion with the police. As such, I have been falsely implicated at his instance. I am innocent. Nothing was recovered from me. I was arrested from my house."

The appellant did not produce any defence witness but tendered the copy of the FIR as Ex. DA.

The learned trial Court on appraisal of evidence held that it is established on basis of evidence that poppy husk was in conscious possession of the appellant. The submissions that there was non compliance of the statutory provisions of the Act namely Sections 42, 50, 55 and 57 were repelled with separate reasons. With these findings the impugned judgment and the order of sentence were passed.

Aggrieved by the said judgment and the order of sentence, the present appeal has been filed.

The prosecution evidence revolves around the statements of ASI Baldev Singh PW1 and ASI Dinesh Singh PW2. ASI Baldev Singh appeared as PW1and supported prosecution version. He testified that when appellant tried to avoid the police party, on suspicion he was stopped. An offer was given to him that if he likes his person can be searched before a Gazetted Officer or a Magistrate but the same was refused. The witness went on to state about the search and recovery of poppy husk from gunny bag weighing 30 Kilogram. The witness thereafter testified about the proceedings conducted at the spot which included taking of the sample, sealing of the articles. He added that when he returned to the police station, no officer senior to him was present. Therefore, he was acting as the S.H.O. He kept the sample and the remaining poppy husk in his custody in the Malkhana. The sealed sample was handed over to Constable Bahadur Singh. He was crossexamined firstly with respect to the entries made in Register No. 19. It reads in his own words as under:

"I have seen Malkhana register No. 19 and in the column meant for the name of the officer by whom the case property was deposited is written as A.S.I. Baldev Singh and below this entry name of Inspector Balkar Singh S.H.O. is also written which has been scored out. In this register after the impression of my seal as BS and other the words regarding seal has been written and scored out and those words are not ligible. Inspector Balkar Singh was Incharge at that time."

On further crossexamination about availability of the officerincharge, he stated :

"There is no entry on the judicial file showing the nonavailability of the S.H.O. on the date of recovery but entry to this effect exists in the daily diary of the police station. Later portion volunteered. We left the police station at 31/4 p.m. I do not remember if S.H.O. was present in the police station or not at that time. I did not call S.H.O. to the place of occurrence nor I sent any intimation to him. We remained at the spot from 4 p.m. to 8 p.m."

The witness added that he had given a note in the case diary on his return to the police station that the officerincharge was not present. He further testified that Gurdial Singh was the Moharriar Malkhana on that day. One key of the Malkhana remains with the Moharrir Malkhana and the other with the officerincharge.

ASI Dinesh Singh is PW2. He also supported the version of the prosecution which requires no repetition. He also testified that when they came back to the police station, the officerincharge of the police station was not present and ASI Baldev Singh was the senior most police officer at that time. According to this witness, the case property was kept with ASI Baldev Singh and a constable was sent to call the public witnesses and he came back within ten minutes.

Learned counsel for the appellant highlighted the fact that there is positive proof that entries in Register No. 19 of the Malkhana have been tampered. There are positive interpolations and, therefore, the version of the prosecution that since officerincharge was not available, ASI Baldev Singh acted as such or could retain the sealed articles cannot be believed . The argument has basis and in the peculiar facts must prevail. Section 55 of the Act reads:

"55. Police to take charge of articles seized and delivered. An officeincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples to be taken shall also be sealed with a seal of the officerincharge of the police station."

This has been enacted with the sole object to ensure that recovered articles are kept in safe custody. The Legislature has pinned faith in the senior officer of the police station namely the officerincharge therein A duty has been cast upon him to take charge of the property and if necessary allow the sample to be taken. He has to affix his seal on such articles. Obviously, this has been done to ensure that there is no tampering.

What has happened in the present case, leaves much to be desired. It is apparent that in Register No. 19 under the column as to the person who deposited the article name of the officerincharge of the police station has been mentioned and thereafter it has been scored. There is also a mention that there is another person who affixed the seal besides ''BS''. It has also been written but the impressions were not legible. It puts the credibility of the register maintained in Malkhana in doubt. It is painful that such interpolations are made with impunity.

Otherwise also it cannot be believed that the officerincharge of the police station was not available. No attempt was made to call him. ASI Baldev Singh has the courage to state that he did not call the Station House Officer to the place of incident but felt shy of producing the case property before him. He also retained the case property with him from 24.4.1993 till it was sent to the Chemical Analyst namely for almost two weeks. It is not even shown that during all this period, the officerincharge of the police station was not available. All these facts clearly establish that what is being stated by the prosecution witnesses cannot be believed. They made no attempt to follow the procedure prescribed by law.

Besides that neither the Malkhana Moharrir has been produced as a witness nor his affidavit was tendered. He is an important link evidence. For the prosecution case nonexamination of the said person in the peculiar facts particularly when there is tampering in Register No. 19 casts a great shadow of doubt on the prosecution version.

When the official witnesses are making statements which are totally untrustworthy, in that event necessarily the Court would insist for independent corroboration from independent witnesses from public. There were residential colonies nearby and it was not difficult to get a reliable public witness, in such like matters in the peculiar facts, when the official witnesses are not coming with truth. In facts of the case, the conviction cannot be based on the testimonies of the official witnesses.

For the reasons, the appeal succeeds. The judgment and the order of sentence passed by the learned trial court are set aside. The appellant is entitled to the benefit of doubt. He is acquitted. He be released if not required in any other case.