Jawant Singh vs State of Punjab

K.S. Kumaran, J.

Appellants (1) Jawant Singh and (2) Mukhtiar Singh were tried by the learned Additional Sessions Judge, Patiala (in Sessions Case No. 32 of 1994 F.I.R. No. 63 dated 8.8.1992 of Police Station, Patran) on a charge under Section 15 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the Act) and were accordingly convicted and sentenced to undergo rigorous imprisonment for 10 years, to pay a fine of Rs. 1 lac each and in default, to further undergo R.I. for two years.

The case of the prosecution is as follows :

On 8.8.1992 shortly before 4.30 a.m., S.I. Gurdeep Singh (PW5) and the police party consisting of ASI Balbir Singh, H.C. Bhag Singh and others were near Gurdwara Hariayo Khurd in connection with checking of bad characters. S.I. Gurdeep Singh received a reliable secret information that accused Mukhtiar Singh and Jaswant Singh were present in the kotha (shed) of the tubewell of Mukhtiar Singh in Village Hariayo Khurd, that they had a large quantity of crushed poppy head in that shed, and were selling it. On this S.I. Gurdeep Singh sent an intimation (Ex.PG) to Police Station, Patran on which the formal F.I.R. (Ex.PG/1) was registered.

S.I. Gurdeep Singh (PW5) and the Police party rushed to the above said shed of accused Mukhtiar Singh. He sent ASI Balbir Singh (PW4) to fetch some independent witness, but none was available. Then the police party raided the shed of the tubewell of accused Mukhtiar Singh. Both the accused were present but, on seeing the police party, accused Mukhtiar Singh ran away and escaped. Accused Jaswant Singh, who was sitting on the bags lying in the shed, was arrested. S.I. Gurdeep Singh (PW5) gave him the option to be searched in the presence of a Gazetted Officer or a Magistrate, but the accused did not exercise his option, and his statementEx.PD to this effect was recorded, signed by Jaswant Singh and attested by ASI Balbir Singh (PW4) and Head Constable Bhag Singh. On a search of the above shed, 10 bags were found to contain crushed head weighing 30 kilograms each. PW5 Gurdeep Singh collected 250 grams each as sample from each of these 10 bags, and the samples and the remainder were sealed and taken into possession under memo Ex. PE, which was also attested by ASI Balbir Singh (PW4) and H.C. Bhag Singh. On the same day, PW5 Gurdeep Singh deposited the case property with M.H.C. Baltej Singh and also locked up accused Jaswant Singh.

On 13.8.1992, PW5 Gurdeep Singh raided the house of accused Mukhtiar Singh, but, he was not found. But, on 19.8.1992, when S.I. Gurdeep Singh (PW5) was present at Chanagra Road, Patran, Balkar Singh, Angrej Singh and Daler Singh produced accused Mukhtiar Singh before him, who was arrested formally. On interrogation, he made a disclosure statement (Ex.PJ) which was thumb marked by him and attested by H.C. Ram Saroop (P.W.6) and Balkar Singh. In pursuance of his statement, he led the police party to the specified place and led to the recovery of a bag containing 30 kilograms of crushed poppy head, from which S.I. Gurdeep Singh (PW5) drew a sample for 250 grams. The sample and the remainder were separately sealed and taken possession of under memoEx. PK which was attested by Balkar Singh and H.C. Ram Saroop. A sum of Rs. 32/ in cash was also recovered from accused Mukhtiar Singh under memo Ex.PL, which was thumb marked by accused and attested by H.C. Ram Saroop and Balkar Singh. On the same day, he deposited the case property with M.H.C. Baltej Singh (PW2) and locked up accused Mukhtiar Singh. After completion of investigation, a chargesheet was laid against the accused.

Before the learned Additional Sessions Judge, Patiala apart from examining the police officials, the affidavits of the police constables providing the link evidence were also produced. In their statement under Section 313 Cr.P.C., the accused pleaded false implication but did not lead any evidence on their side. Taking into consideration the materials placed before him, the learned Additional Sessions Judge convicted and sentenced the accused as mentioned above. The learned Additional Sessions Judge came to the conclusion that the evidence of PW4 Balbir Singh and PW5 Gurdeep Singh was trustworthy. He rejected the contention of the defence that no balance or weights were found and, therefore, the prosecution case is not true on the ground that the accused were wholesale dealers and were not retailers. Similarly, he did not accept the request to reject the case of the prosecution on the ground that no money was found on the person of accused Jaswant Singh by holding that he was not on a journey and that Mukhtiar Singh''s house was also nearby. So far as the identity of Mukhtiar Singh, who had run way from the place, the learned Additional Sessions Judge found the evidence of PWs 4 and 5, who had recognised him, reliable. The learned Additional Sessions Judge held that there was cogent, reliable and consistent evidence with regard to recovery of 10 bags of crushed poppy head from the shed of tubewell of accused Mukhtiar Singh on 8.8.1992, the escape of accused Mukhtiar Singh and the arrest of Jaswant Singh on the spot.

So far as the other part of the prosecution case i.e. the recovery of one bag of crushed poppy head on 19.8.1992 from outside the shed of the tubewell of Mukhtiar Singh is concerned, the learned Additional Sessions Judge held the same to the worthy of acceptance since the recovery followed the disclosure statement by accused Mukhtiar Singh. So far as the nonassociation of independent witness in respect of the occurrence on 8.8.1992 is concerned, the learned Additional Sessions Judge held that though an attempt was made by the investigating agency to associate independent witness, none was available. With regard to the second occurrence, he held that an independent witness namely, Balkar Singh was associated but he happened to turn hostile, and so the prosecution was not to be blamed for it. The learned Additional Sessions Judge took into consideration the plea of the prosecution that it is not possible to foist such a huge quantity on the accused. Ultimately he convicted and sentenced the accused as mentioned above, aggrieved by which the appellants have come forward with this appeal.

I have heard the counsel for both the sides and perused the records. the case of the prosecution can be divided into two parts and considered since, the first occurrence allegedly took place on 8.8.1992 and the second on 19.8.1992.

I will first deal with the occurrence which is alleged to have taken place on 8.8.1992 at about 4.30 a.m. I have already set out the details of the case of the prosecution in this behalf. Both PW4 S.I. Balbir Singh and P.W5 S.I. Gurdeep Singh have spoken about this alleged occurrence on 8.8.1992. But, the main legal objection taken by the learned counsel for the appellants is that the provisions of Section 42 have not been complied with, which not only vitiates the prosecution but also the trial. The learned counsel for the appellants contended that inasmuch as the raid of the motorshed belonging to appellantMukhtiar Singh, was conducted between sunset and sunrise. S.I. Gurdeep Singh (PW5) should have recorded the reasons why he did not obtain a search warrant before undertaking the raid. He relied upon the proviso to subsection (1) of Section 42 of the Act according to which if a search of a building has to be undertaken between sunset and sunrise, the officer should first record the reasons as to why he believed that the search warrant or authorisation cannot be obtained without affording opportunity for the concealment of the evidence or facility for the escape of the offender, and then only, he can enter and search the building. This provision, as rightly contended by the learned counsel for the appellants, is mandatory. He also relied upon the decision of the Hon''ble Supreme Court in State of Punjab v. Balbir Singh, 1994(1) RCR 736 , wherein the Hon''ble Supreme Court held as follows :

"...Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc., he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that the should record his reason of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial."

There is no evidence in this case that any of the police officials recorded the reasons for such a belief before undertaking the search of the motorshed of accused appellant Mukhtiar Singh since the raid was conducted between sunset and sunrise. Therefore, on this ground alone, I have to hold that the prosecution and the trial with regard to this alleged occurrence on 8.8.1992 are vitiated.

The second part of the prosecution case is that accusedappellant Mukhtiar Singh, who was also present in the motorshed, ran away from the place on seeing the police, but, could not be arrested. According to S.I. Gurdeep Singh (PW5), on 13.8.1992, he conducted a raid of the house of Mukhtiar Singh, but did not find him there, whereas certain persons of the village promised that they will produce Mukhtiar Singh before him. PW5 Gurdeep Singh also stated in his evidence that on 19.8.1992, when he was present at Chanagra Road, Patran, appellant Mukhtiar Singh was produced before him; he arrested and interrogated him; he made a disclosure statement (Ex.PJ), led them to the place near his motorshed and also to the recovery of one bag of poppy head weighing 30 kilograms which was also seized. The learned counsel for the appellants contended that it is wholly unbelievable and improbable that Mukhtiar Singh would have kept a bag containing poppy head outside and near his motorshed on 19.8.1992 if the police had allegedly raided his motorshed on 8.8.1992, and his house on 13.8.1992. According to Head Constable Ram Saroop (PW6) who was present at the time of the alleged disclosure statement and recovery, this gunny bag was lying outside the tubewell where public can pass through. Therefore, apart from the improbability pointed out above, it is also evident that the place of alleged recovery of one bag of poppy head is accessible to the public. The evidence of PW4 S.I. Balbir Singh shows the members of the family of Mukhtiar Singh are also in their house. PW5 S.I. Gurdeep Singh also stated that the wife and sons of Mukhtiar Singh accused were also present in their residential house. He also admitted that the tubewellshed was just adjacent to the house of Mukhtiar Singh. Therefore, one cannot be sure that this bag of poppy head was in the conscious possession of Mukhtiar Singh appellant. Of course, it is alleged that Mukhtiar Singh gave a disclosure statement in pursuance of this bag containing poppy head. The question is whether this disclosure statement could be believed. This alleged disclosure statement Ex.PJ is attested by H.C. Ram Saroop as well as one Balkar Singh, who is an independent witness, but, the said Balkar Singh has not been examined. The nonexamination of the independent witness, though he was allegedly associated at the time of the disclosure statement and recovery of poppy head, certainly affects the case of the prosecution. It may be that the official witnesses can be believed under normal circumstances. But, where an independent witness was associated, he should have been examined. It is especially so when it is alleged that though the police party went to the motorshed of Mukhtiar Singh on 8.8.1992, which is adjacent to the residence of accused Mukhtiar Singh, but did not raid the house of Mukhtiar Singh on 8.8.1992. It is also improbable that the police party would have merely gone to the motorshed without having a look at its surroundings. Even on 13.8.1992, when allegedly the house was raided, it is improbable that the surroundings were not looked at by the police party. Therefore, it is clear in these circumstances that this alleged disclosure statement has been thought of only to connect the alleged recovery of one bag to Mukhtiar Singh as otherwise, it would be wholly impossible to connect him to the said bag.

One other factor which is also against the prosecution is this. The first alleged occurrence took place on 8.8.1992, whereas the second alleged occurrence according to the police took place on 19.8.1992. No separate F.I.R. was registered in respect of the same. Since it is not alleged that Jaswant Singh had any connection with this, a separate FIR should have been registered.

Therefore, taking into consideration all these aspects, I am of the opinion that with regard to both the incidents/occurrences, the prosecution has to fail.

Accordingly, this appeal is allowed setting aside the conviction of and the sentence awarded to the accusedappellants. The accusedappellants are acquitted and the fine, if paid, will be refunded to them.