Joginder Singh vs State of Punjab

H.S. Bedi, J. (Oral)

The appellant Joginder Singh has filed the present appeal against his conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called ''the Act'') on the following facts :

On 11th July, 1993, Sub Inspector Jagdev SinghPW2 of Police Station Sadar Abohar alongwith A.S.I. Roor Singh and other police officials was going from the side of Kala Tibba towards village Ram Saran and when the police party had gone one kilometre ahead of village Kala Tibba, it observed the accused coming from the opposite side on a camel cart, who on seeing the police party, tried to turn the cart towards his left side which excited the suspicion of the party. The accused was, accordingly, encircled and apprehended. Sub Inspector Jagdev Singh informed him of his right under Section 50 of the Act and made an offer that he could be searched in the presence of a Gazetted Officer or a Magistrate if he so required, but that offer was declined vide memo Ex.PA. On search of the camel cart, poppy husk weighing 1 quintal 5 kgs. was recovered. A sample of 100 grams was taken out and the remaining poppy husk and other incriminating articles were taken into possession vide memo Ex.PE and ruqa Ex.PE was sent to the police station which led to the registration of the formal First Information Report Ex.PE/1. The sample which was taken from the bulk quantity was duly sent to the Chemical Examiner, who vide his report Ex.PF found it to be narcotic. The challan was, accordingly, presented in the Court after completion of the investigation, and as the accused pleaded not guilty, he was brought to trial.

To prove its case, the prosecution examined ASI Roor Singh PW1, Sub Inspector Jagdev Singh PW2 and Constable Jalandhar Singh PW3.

When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the prosecution allegations and pleaded false implication and further set up a defence that the had been arrested by the police of Police Station, Jalalabad on 25th June, 1993 and had been subsequently beaten and then handed over to the police of Police Station Sadar, Abohar and, thereafter, involved in the present case. In defence, the accused also examined various witnesses including Sh. Savinder Singh, Ahlmad in the Court of Shri Sukhdev Singh, Judicial Magistrate Ist Class, Fazilka, who deposed that one Fauja Singh son of Sh. Piar Singh on 7th July, 1993 had moved an application Ex.DA to the effect that the accused had been detained by the police on 25th June, 1993 and it was apprehended that he would be involved in false case.

The trial Court after examining the matter came to the conclusion that the provisions of Sections 52 and 57 of the Act had been complied with; that an offer under Section 50 of the Act had been given and the fact that no independent witness had been joined, did not take away the credibility of the prosecution case as the police officials had stated that they had made an effort to join independent witness, but none had agreed to do so; that the defence version that the accused had been arrested on 25th June, 1993 was not worthy of credence being an afterthought as there was no explanation as to why Fauja Singh had kept quiet from 25th June, 1993 (when the application before the Magistrate was filed) till 7th July, 1993. Vide the impugned judgment, the learned Additional Sessions Judge, Ferozepur, convicted the accused and sentenced him to undergo imprisonment for ten years and to pay a fine of Rs. one lac and in default of payment of the fine, he was further ordered to undergo R.I. for three years. Hence, this appeal

Mr. P.K. Goklaney, the learned counsel appearing in support on this appeal has urged that there had, in fact, been noncompliance with the provision of Section 50 of the Act and this fact, by itself, vitiated the conviction of the accused. He has argued that as per the evidence which had come on the record, the accused was apprehended on account of his suspicious conduct and in the light of the judgment in Mohinder Kumar v. The State of Panaji Goa, 1995(2) R.C.R. 599 , the accused was entitled to be given a notice under Section 50 of the Act and in the absence of any such notice, the conviction would not lie.

I have considered this argument of the learned counsel and find that it cannot succeed. All that is required under Section 50 of the Act is that an offer should be given to the accused as to whether he wished to be searched before a Gazetted Officer or a Magistrate and there is no further requirement that the accused is to be taken before either of the two persons. It has come in the evidence of PW2 S.I. Jagdev Singh that such an offer had, in fact, been made vide memo Ex.PA. To my mind, therefore, there was sufficient compliance with the provisions of Section 50 of the Act.

It has then been argued by Mr. Goklaney that on an over all appreciation of the evidence, it could not be said that the prosecution case stood proved. He has first and foremost urged that the matter would have to be examined in the light of the fact that only police officials had appeared as PWs against the accused and that it had been laid down by various authorities that the evidence of witnesses who are interested in the success of their case, would have to be examined with greater care. Applying this principle to the facts of the case, it has been urged that it had not been sated by Sub Inspector Jagdev Singh either in his statement in the Court or by way of any affidavit that the seized poppy husk which had been in his possession from 11th July, 1993 to 14th July, 1993 had been kept in proper custody and had not been tampered with and in the absence of any such link evidence available on the file, it could not be said that it was the poppy husk seized from the accused that had been sent to the Chemical Examiner.

There is some merit in the stand of the learned counsel on this aspect of the matter. I have gone through the evidence of Sub Inspector Jagdev Singh PW2 and find that although he stated that the poppy husk remained in his custody till its deposit on 14th July, 1993, he has nowhere stated that it remained in a proper sealed condition. It is true that though no universal rule can be laid down that the police witnesses cannot be believed, yet as already mentioned above, the evidence of interested witnesses has to be examined with greater care. The statements of the police officials that an attempt had been made to involve some independent witness cannot be accepted merely on its face value. Viewed in this background, the defence version becomes extremely probable. It is the conceded case that an application Ex.DA had been moved by one Fauja Singh before the Ilaqa Magistrate, in which he stated that the accused had been apprehended by the police on 25th June, 1993 and had not been produced in Court and his whereabouts were not known and it was likely that he would be involved in a false case. The said application was, however, ordered to be filed. I am unable to accept the reasoning given by the trial Court when it says that this application could not be accepted on its face value as there was no explanation as to why Fauja Singh had kept quiet from 25th June, 1993 till 7th July, 1993 and had not come to some authority prior to that date. It cannot be lost sight of that a person aggrieved comes to the Court as a last resort.

After an overall appreciation of the evidence, the case against the accused, to my mind, does not stand proved. For the reasons recorded above, this appeal is allowed, the judgment under reference set aside and the appellant acquitted of the charge framed against him.