Jodha Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 16th May, 1997 passed by the Court of Additional Sessions Judge, Hoshiarpur, who convicted the appellant Jodha Singh under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'') and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/. In default of payment of fine, the appellant was ordered to undergo further rigorous imprisonment for two years.

Jodha Singh son of Phuman Singh faced trial under Section 18 of the Act on the allegations that on 4th September, 1995 he was allegedly found in possession of 250 grams of opium in the area of village Mohnowal without any permit or licence. Brief facts of the case are that on 4th September, 1995 A.S.I. Balwinder Singh of C.I.A. Staff, Garhshankar, along with Head Constable Sawinder Pal, Constable was going in a Govt. vehicle Allwyn Nissan driven by constable Mashinder Pal, in connection with patrolling. When the Police Party reached on the culvert of canal minor in the area of village Mohnowal, one person was seen coming from the side of that village and on seeing the Police Party he became frightened and tried to slip away but on suspicion he was apprehended by A.S.I. Balwinder Singh with the help of other police officials. The Thanedar tried to associate some independent persons but none was willing to join them. The Thanedar inquired from the accused whether he wanted to be searched before a Gazetted Officer or Magistrate, to which the accused reposed confidence in the Thanedar. His search was conducted by the Thanedar (ASI Balwinder Singh) as per rules. From his personal search, opium wrapped in a glazed paper was recovered from the right pocket of his shirt. The accused could not produce any valid licence or permit for keeping the opium in his possession. Earlier the Thanedar recorded the statement of the accused appellant vide consent memo. (Ex.PD) about his agreeing to give search to the Thanedar without the presence of the Gazetted Officer or Magistrate. On weight the opium recovered from the accused was found to be 250 grams. Entire opium was taken into possession vide recovery memo. (Ex.PE) attested by Head Constable Surinder Pal and Constable Ram Lubhaya. In the meanwhile D.S.P. Sarwan Singh also came at the spot. The accused and the sealed parcel of the case property containing 250 grams of opium were presented before the D.S.P., who broke the seals of the bulk of the opium and separated 10 grams of opium by way of sample and the remaining opium weighing 240 grams was separately sealed. The D.S.P. used his own seal bearing inscription `SS'' and the entire case property was again taken into possession vide recovery memo. (Exhibit PB) attested by Head Constable Surinder Pal and Constable Ram Lubhaya. The accused could not produce any permit or licence for the possession of the opium. Ruqa (Ex.PF) was sent on the basis of which formal F.I.R. (Ex.PF/1) was registered at Police Station Garhshanker. This ruqa was sent by A.S.I. Balwinder Singh on 4th September, 1995. Said Balwinder Singh also prepared rough site plan of the place of recovery.

After recording statements of the formal witnesses on receipt of the report of the Chemical Examiner, the accused was challaned under Section 18 of the Act in the Court of the Illaqa Magistrate, who supplied copies of the documents to the accused, and vide commitment order dated 26th October, 1995 committed the accused to the Court of Sessions to face the trial under Section 18 of the Act. Vide order dated 23rd December, 1995 the appellant was chargesheeted under Section 18 of the Act. The charge was read over and explained to him to which he pleaded not guilty and claimed trial.

In order the prove the charge, the prosecution examined P.W.2 Sarwan Singh, D.S.P., P.W.4 Head Constable Sawinder Pal and P.W.5 A.S.I. Balwinder Singh. The prosecution also tendered into evidence the report of the Chemical Examiner (Ex.PH), and closed its case.

The statement of the accused was recorded under Section 313, Cr.P.C., and all incriminating circumstances appearing in the prosecution case were put to him. The appellants denied all the circumstances and stated that nothing was recovered from him and that he had been falsely implicated. When called upon to enter his defence, the accused did not lead any evidence and closed the case.

The learned Additional Sessions Judge, Hoshiarpur, vide the impugned judgment and order convicted the appellant under Section 18 of the Act and sentenced him in the manner as stated above. Aggrieved by his conviction and sentence present appeal has been filed by the appellant.

I have heard Shri G.S. Gill, Advocate, on behalf of the appellant, and Shri J.S. Brar, D.A.G. Punjab, on behalf of the State and with their assistance have gone through the record of the case.

The first submission which has been raised by the learned counsel for the appellants is that the provisions of Section 50 of the Act in this case have not been complied with, for which the benefit should go to the appellant. On the contrary, it has been submitted by the learned counsel appearing on behalf of the State that the present is a chance recovery and in these circumstances, the provisions of Section 50 of the Act are not applicable. Refuting the argument of his legal adversary, Mr. G.S. Gill submits that had it been a case of chance recovery, the provisions of Section 50 of the Act could not have been applied. But the conduct of the Investigating Officer Balwinder Singh indicates that he had reasonable ground to believe before the arrest of the appellant that the appellant had committed some offence under ChapterIV of the Act and in these circumstances Section 50 of the Act in this case would become applicable.

Considering the rival contentions of the parties, first this Court is to form an opinion under what circumstances Section 50 would come into play. Present is a recovery when the Police Party was going on patrol duty and the recovery of the opium has been effected from a public place. According to Section 43(a) any officer of any Department mentioned in Section 42 of the Act may seize in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance.

According to Section 43(b) any officer of any of the departments mentioned in Section 42 may detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or substance in his possession and such possession appears to him be unlawful, arrest him and any other person in his company. In this case I will have to see the conduct of Shri Balwinder Singh, A.S.I., whether he had reason to believe that the appellant had committed some offence punishable under ChapterIV. There is one material document on the record, which will assist this Court in determining this issue and this document is Exhibit PD. Had it been a case of pure chance recovery, certainly Section 50 of the Act will not come into play, as held in Dalip Singh v. State of Punjab, 1997(4) R.C.R. (Criminal) 118 a Division Bench judgment of this Court where it has been specifically held that Section 50 will not apply in a case of chance recovery. It has been held that if a Police Party is on a patrol duty and without any prior information regarding the commission of the offence under the Act, the provisions of Section 50 of the Act would not be attracted in such a case. In this judgment the entire case law, including State of Punjab v. Jasbir Singh and others, 1996 S.C.C. (Cri.) 1; Mohinder Kumar v. The State, Panaji, Goa, AIR 1995 S.C. 1157, was considered. The Hon''ble Division Bench even differed with the D.B. pronouncement of this Court in the case reported as Gurpreet Singh @ Pappi and another v. State of Punjab, 1997(1) C.C. Cases 297.

After reading the document Exhibit PD, it can be well concluded by this Court that at all material times A.S.I. Balwinder Singh was taking into his head that he had every reason to believe that the accused Jodha Singh had committed an offence punishable under ChapterIV of the Act. This conclusion of this Court stands fortified from question No. 1 of Exhibit PD. The translation of this question (No. 1) can be done in the following manner :

"Question : Whether your are interested to give your search in the presence of some Magistrate or a Police Gazetted Officer ? The law has given you a right to exercise such option."

This question clearly indicates that A.S.I. Balwinder Singh had a reasonable ground to believe that the appellant must be in possession of some narcotic drugs or psychotropic substance and for that reason he was to give search under Section 50 of the Act and according to Section 50 of the Act if any search is to be made under Sections 41, 42 or Section 43 of the Act, the provisions of Section 50 of the Act are supposed to be complied with. Once it is established and held that A.S.I. Balwinder Singh was apprehending the present appellant by virtue of the provisions of Section 43, in that situation he was bound to comply with the mandatory provisions of Section 50 of the Act.

Now it is to be seen whether Section 50 of the Act has been complied with or not. According to Section 50 of the Act, complete offer has to be given. Object of this section is to make apprised the person to be searched that he had two legitimate options (i) to be searched in the presence of a Magistrate, or (ii) to be searched in the presence of a Gazetted Officer mentioned in Section 42 of the Act. In the present case A.S.I. Balwinder Singh has given the option only to be searched in the presence of a Magistrate or a Gazetted Police Officer. This offer given by Shri Balwinder Singh is not in accordance with the provisions of Section 50 of the Act. Resultantly, the entire search and seizure of the opium becomes illegal and the trial stands even vitiated.

Further it is a recovery from a public place at about 4 P.M. The Police must have weighed the opium. It must have arranged scale and weights. No independent witness has been associated by A.S.I. Balwinder Singh. Though there is an explanation on the part of A.S.I. Balwinder Singh in the ruqa that he tried to associate some independent witnesses, but nobody was willing to join, yet the naked explanation given by A.S.I. Balwinder Singh cannot be accepted on its face value. He was a Thanedar. He had the power to initiate action against those persons who refused to join in an investigation and in that discharge of his public duty. In the ruqa there is no mention about the name of the person to whom he tried to contact. If a feeble explanation has been coined by Shri Balwinder Singh, the benefit of such weak explanation has to go to the appellant because ultimately he was going to be convicted and sentenced for a period not less than 10 years. Graver the offence, stricter is the proof is a universal law of legal jurisprudence. In these circumstances, the conduct of Shri Balwinder Singh does not inspire confidence.

Still further the case of the prosecution is that Balwinder Singh A.S.I. produced the entire case property before D.S.P. Sarwan Singh and it was taken into possession vide recovery memo. (Ex.PB). Assuming for the sake of argument that Balwinder Singh A.S.I. was not in a position to associate any independent person for one reason or the other, what was the justification on the part of Shri Sarwan Singh D.S.P., not to take the assistance of some independent witness when he took the entire case proper into possession vide recovery memo. (Ex.PB). The case of the prosecution itself is that the entire opium was produced before D.S.P. Sarwan Singh by A.S.I. Balwinder Singh. A glance at Exhibit PB would show that A.S.I. Balwinder Singh never attested this memo. This also creates reasonable doubt in the mind of this Court that the seizure of the opium has not been done by D.S.P. Sarwan Singh in the manner as deposed by him.

Learned counsel for the respondentState submits that D.S.P. Sarwan Singh was a Gazetted Officer. He was a responsible officer of the Police and if his statement inspires confidence in the mind of the Court, he was not under any obligation to associate an independent witness. Mr. J.S. Brar, D.A.G. Punjab, supplemented his submission by saying that the statement of an independent witness in no manner will stand on a higher pedestal than that of D.S.P. Sarwan Singh who has no axe to grind against the appellant. So far as the proposition of law is concerned, it is well settled that the statement of a Police witness stands on the same footing as that of a nonofficial witness, but the rule of prudence always requires that the statement of police officials should inspire confidence in the mind of the Court. This is a rule of caution. I have already stated above, the recovery memo. has not been signed by A.S.I. Balwinder Singh. Resultantly, the benefit of doubt should go the appellant.

In the light of my above discussion, I allow this appeal, set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him. Intimation regarding the acceptance of this appeal shall be sent to the Jail Authorities and the appellant shall be set at liberty immediately, if not required in any other case. The case property stands confiscated to the State.