Jeeto vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgment/order dated December 18, 1995, passed by the Additional Sessions Judge, Bhiwani, whereby the appellant has been convicted under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced to undergo simple imprisonment for 10 years and to pay a fine of Rs. 10,000/ and in default of payment of fine, to further undergo simple imprisonment for a period of 2 years.

The prosecution case, as can be gathered from the record of the trial court, is that on 16.6.1993, a police party headed by ASI Om Parkash, including one Satbir Singh son of Ramji Lal, was present at the crossing near Railway Station, Loharu. The appellant was sighted, having a bag on her head, coming from the front side. On seeing the police party, the appellant took a turn. She was apprehended at the spot. On an enquiry the appellant disclosed that there was poppy husk in the bag. On this reply, ASI Om Parkash along with others took the appellant before Shri Randhir Singh Boora, Naib Tehsildar (exercising the powers of an Executive Magistrate), Loharu. The search of the bag was conducted before the said Executive Magistrate and poppy husk weighing 25 kgs. was recovered. A sample of 100 gms. of the contents was separated. The sample as well as the remaining contents were converted into two separate sealed parcels with the seal of ''HS''. Ruqa (Exhibit PC) was sent to the Police Station, on the basis of which formal first information report, carbon copy of which is Exhibit PC/1, was recorded. The appellant along with the case property was produced before SI Ranbir Singh, Officer Incharge of Police Station, Loharu. After verification, the said SHO put his seat on both the parcels and then the case property was deposited in the malkhana. The sealed sample parcel was sent to the Chemical Examiner and the reportExhibit PE was received. After completing the investigation, a chargesheet was filed in the Court.

A charge under section 15 of the Act was framed against the appellant, to which she pleaded not guilty and claimed trial.

In support of its case, the prosecution examined 5 witnesses. Shri Randhir Singh Boora (PW 1) is the Executive Magistrate, before whom the search of the bag, carried by the appellant, was conducted. ASI Om Parkash (PW 2) is the searching and investigating officer. Constable Mahender Singh (PW 3), MHC Satbir Singh (PW4) and HC Rampal (PW 5) have tendered their affidavits Exhibits PG, PH and PJ, respectively.

In her examination under section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded false implication. No evidence in defence was produced. On an appraisal of the evidence produced by the prosecution, the learned Addl. Sessions Judge convicted and sentenced the appellant, as stated above. Hence this appeal.

I have heard the learned counsel for the parties, who have taken me through the record of the trial court also.

Shri R.P. Dhir, Advocate, learned counsel for the appellant, while assailing the order of conviction, has vehemently argued that the provisions of Section 50 of the Act have not been complied with at all and, therefore, the entire trial is vitiated. In support of this plea, the learned counsel has placed reliance upon wellknown judgments of the Apex Court rendered in State of Punjab v. Balbir Singh, AIR 1994 Supreme Court 1872, Saiyed Mohd Saiyed Umar Saiyed and others v. State of Gujarat, 1995 Cri. L.J. 2662, State of Punjab v. Jasbir Singh and others, 1996 Supreme Court Cases (Crl.) 1, and State of H.P. v. Pirthi Chand and another, 1996 Supreme Court Cases (Cri.) 210. It has also been argued by the learned counsel that the prosecution has not examined Satbir Singh, the only independent public person present in the police party, to prove the compliance of the said provision. It has also been contended that the presence of Lady Constable Amita has not been established and the seizure memo Exhibit PA was got signed from Shri Randhir Singh Boora (PW 1), later on.

On the other hand, learned State counsel, has argued that the search of the bag carried by the appellant was conducted in the presence of the Executive Magistrate, which fulfils the requirements of Section 50 of the Act. It has been further argued that in view of the testimony of Shri Randhir Singh Boora (PW 1), nonexamination of Satbir Singh or Lady Constable Amita is immaterial.

I have given my careful thought to the respective arguments advanced at the Bar.

From a bare reading of the ruqa (Exhibit PC), it is evident that ASI Om Parkash never apprised the appellant of her right to be searched either before a Gazetted Officer or a Magistrate at all. There is nothing either in this ruqa or the first information report (copy of which is Exhibit PC/1) to show even that the appellant was apprised of her right under Section 50 of the Act and she was made to exercise her option. It, is correct that ASI Om Prakash (PW 2) has deposed at the trial that after apprehending the appellant on suspicion, he had served her with a notice (Exhibit PB) asking her choice about search to be conducted, and that the appellant opted for search before a Magistrate or a gazetted officer and put her thumb mark on the endorsement (Exhibit PB/I). According to the prosecution case, at that time an independent public person Satbir Singh son of Ramji Lal was present. This material witness has not been examined by the prosecution and has been given up as being unnecessary. Lady Constable Amita who is also stated to be present at that time and who is stated to have been involved in conducting search has also not been examined at the trial. The entire prosecution case regarding the compliance of Section 50 of the Act hinges upon the bald statement of ASI Om Prakash (PW 1), the Investigating Officer. The statement of ASI Om Prakash (PW 2) does not inspire any confidence. If he had apprised the appellant about her rights under Section 50 of the Act and had prepared Exhibit PB at that time, and if the appellant had exercised her option and put her thumb impression on the endorsement (Exhibit PB/1), the same must have been found to be mentioned in the ruqa (Ext. PC), which was prepared much later on after the alleged recovery of the poppy husk. Since there is no mention regarding compliance of Section 50 of the Act either in the ruqa or in the first information report, it appears that Exhibit PB had been prepared later on just to fill up the lacuna. The learned State counsel has not been able to give any explanation as to why the independent public witness whose evidence could have been the best on the point, had been given up. The testimony of Shri Randhir Singh Boora (PW 1) regarding conducting of the search of a bag being carried by the appellant before him also does not inspire confidence. The obvious reason is that the seizure memo does contain his signatures but the same appears to have been obtained first and thereafter the seizure memo appears to have been prepared.

A bare look at this document would go to show that the writing over the signatures of Shri Randhir Singh Boora (PW 1) has been made after the signatures had been put thereon. Further this witness admits that on that very day in four other cases search was conducted before him but was unable to say as to whether all those cases related to the relations of the appellant or to the same Investigating Officer. It is interesting to note that in his crossexamination, ASI Om Prakash (PW 2), the Investigating Officer, has shown lack of memory relating to the question if on that very day he had produced any other accused under the Act before this very witness before conducting search.

In view of the above discussion, the only conclusion is that ASI Om Prakash did not comply with the provisions of Section 50 of the Act before conducting the search of the bag alleged to have been carried by the appellant.. It is not disputed that noncompliance of Section 50 of the Act, which provision has been held to be sacrosanct and mandatory in nature, strikes at the core of the prosecution case, and vitiates the trial itself.

Another weighty argument advanced by the learned counsel for the appellant is that the prosecution has failed to rule out the possibility of the socalled sealed sample having not been tampered with till it reached the hands of the Chemical Examiner. To appreciate this argument, it may be noted that the seat after use is stated to have been handed over to the public witness Satbir Singh who has been withheld by the prosecution for the reasons best known to it. According to the prosecution case, the alleged contraband was recovered on 16.6.1993 and the sealed sample parcel was sent to the office of Chemical Examiner on 1.7.1993. There is nothing on the record to show as to when the alleged seat was returned by Satbir Singh, the independent public person. It is also important to note that the seat used by ASI Om Prakash belonged to HC Hari Singh, who has also not been examined. There is explanation forthcoming as to why the seal of HC Hari Singh was used instead of the seal of the seizing officer himself. In other words, there was ample time and opportunity with the police to tamper with the sample parcel and it cannot be said that the sample which reached the hands of the Chemical Examiner was the same which is stated to have been prepared at the spot of occurrence.

At the conclusion of the trial, the prosecution can succeed only on discharging the unshifting burden of proving its case against the accused and strongest of suspicion does not constitute the proof required. One of the essential facts to be proved affirmatively by the prosecution is that right from the stage of the seizure till it reaches the hands of the Chemical Analyst, there was no possibility to change or tamper with the recovered material. In the present case, the prosecution has failed to prove this essential ingredient to prove the guilt of the appellant. In the absence of this vital link, the conviction of the appellant is flawed. It is well known in criminal law that "fouler the crime, the greater the evidence. " The word ''greater'' does not signify ''in quantity'' but denotes ''in quality''. In my considered view, the prosecution has failed to prove its case against the appellant beyond reasonable doubt.

For the reasons mentioned above, this appeal succeeds. The conviction and sentence of the appellant are set aside and she is acquitted of the charge under section 15 of the Act. The appellant be released forthwith, if not wanted in any other case.