Karnail Singh @ Mahi @ Kala vs State of Punjab

A.N. Jindal, J

On account of the recovery of 35 kgs. of poppy husk without any permit or licence, the accused-appellant (herein referred as ''the accused) was prosecuted for the offence u/s 15 of the N.D.P.S. Act and was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 2 years.

In brief, the facts are that on 19.05.1997, ASI Karam Singh alongwith other police officials was present in Sahejpura Chowk, Samana where he met Hazura Singh, Lambardar, to whom he joined. In the meantime, Karnail Singh accused, while keeping a gunny bag tied on the pillion of his scooter bearing registration No. PAP-1704 arrived there. On seeing the police party, he became perplexed and tried to slip away. ASI Karam Singh apprehended him with the help of other police officials. Suspecting contraband articles in violation of the provisions of Narcotic Drugs & Psychotropic Substances Act (in short ''the Act''), he called DSP Pritpal Singh Thind, who alongwith ASI Karam Singh gave option to the accused whether he wanted to get himself searched before DSP or the Magistrage to which the accused reposed confidence in DSP Pritpal Singh Thind. His statement Ex.PC in this respect was recorded. On the instructions of DSP, ASI Karam Singh searched the bag, carried by the accused, which was found to contain poppy husk powder. After drawing two samples of 250 grams each, the residue poppy husk powder on weighment came to be 34.500 kgs. which was again put in the same bag Ex.P1. Samples and the gunny bag Ex.P1 were sealed with the seal bearing impression "KS" belonging to ASI Karam Singh and "PPS" belonging to DSP Pritpal Singh Thind. Sample seal impression Ex.PD was also prepared. The seal after use was handed over to Hazura Singh, Lambardar. The case property as well as the scooter bearing registration No. PAP-1704 were taken into possession vide memo Ex.PE. ASI Karam Singh sent ruqa Ex.PF to the police station on the basis of which formal FIR Ex.PF/1 was recorded by ASI Malkeet Singh. ASI Karam Singh prepared the rough site plan of the place of occurrence Ex.PG, took into possession the registration certificate of the scooter vide memo Ex.PH and recorded the statements of the witnesses. He produced the accused alongwith case property before SHO SI Jassa Singh, who after verifying the facts, directed ASI Karam Singh to deposit the case property with MHC Mewa Singh and produced the same alongwith the case property before Ilaqa Magistrate, Samana.

The Special Judge framed the charge u/s 15 of the Act against the accused to which he pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined MHC Mewa Singh (PW1), Constable Gurcharan Singh (PW2), ASI Karan Singh (PW3) and DSP Pritpal Singh Thind (PW4).

When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. However, no evidence was led in defence.

On appreciation of evidence, the trial ended in conviction.

Arguments heard. Record perused. Admittedly, ASI Karam Singh alongwith other police officials was present at Sahejpura Chowk, Samana, which is a thoroughfare, visited by the public frequently but no independent witness was joined to attest the recovery memo. The only witness namely Hazura Singh, Lambardar, who always remains at the back and call by the Investigating Officer, so joined, was also not examined for the reasons best known to the Investigating Officer. Besides, there is also a delay of 7 days in sending the sample for chemical examination. The recovery is alleged to have taken place on 19.05.1997 whereas the sample was sent by SSP, Patiala for chemical examination on 26.05.1997. This delay stands unexplained by the prosecution. No doubt some delay in sending the sample is not fatal to the prosecution case yet the prosecution has failed to complete by way of link evidence that the sample remained intact during the period of custody with the chemical examiner. Link evidence in this case is missing. The other glaring defect which vitiates the recovery is that ASI Karam Singh did not give proper option as envisaged u/s 50 of the Act. He was required to give option of search by a Gazetted Officer or a Magistrate. Here in this case, ASI Karam Singh, without giving the option of search to accused, called DSP Pritpal Singh Thind at the spot then gave option to the accused if he wanted to get him searched from DSP Pritpal Singh Thind or Magistrate. He did not give option to the accused if he wanted to get himself searched from a Magistrate or a Gazetted Officer. Not only this, DSP Pritpal Singh Thind, who had given the option, was not actually the DSP as notified by the Government, therefore, he cannot be termed as Gazetted Officer which may be covered by Section 50 of the Act. As admitted by DSP Pritpal Singh Thind, he was working as an Adhoc DSP and was drawing salary as an Inspector. He was not confirmed as DSP and there was no gazette notification that he was a Gazetted Officer. The fact remains established that the option though strictly speaking was not required in case of search of a bag. If the process was adopted for personal search, then it should have been by a proper officer. Otherwise, the whole process regarding search would be considered as not correct. Though, there was no requirement to make an option in case of personal search but in this case, the accused was also personally searched. In that situation also ASI Karam Singh committed default while joining an officer, who was actually not a Gazetted Officer.

It is further noticed that the Investigating Officer did not comply with the provisions of Section 55 of the Act. He states that he produced the case property alongwith the accused before SHO SI Jassa Singh, who verified the investigation and directed him to deposit the case property with MHC Mewa Singh and locked the accused in police lock-up. According to Section 55, ASI Karam Singh was obliged to produce the case property alongwith the accused and the witnesses before SHO SI Jassa Singh but admittedly Hazura Singh, Lambardar, had not accompanied them to the police station. The factum with regard to producing the case property before SI Jassa Singh seems to be false. Had the same been produced before him then he must have fixed his own seals after verifying the contents of the property. Yet the report of the chemical examiner as well as the testimonies of Mewa Singh (PW1) and Constable Gurcharan Singh (PW2) reveal that the case property was bearing seal of ASI Karam Singh bearing impression "KS" and seal of DSP Pritpal Singh Thind, bearing impression "PPS". SI Jassa Singh had not been produced in the Court to corroborate the version given by ASI Karam Singh. Under these circumstances, statement of ASI Karam Singh cannot be taken as gospel truth. Had any memo been prepared by ASI Karam Singh with regard to production of the same before SHO SI Jassa Singh or had any entry been made by him in the roznamcha regarding the case property produced before him (SI Jassa Singh), then this part of the statement would have been crosschecked, otherwise, in the absence of any such evidence, no inference could be drawn that the case property was actually produced before SHO/SI Jassa Singh. Section 55 of the Act lays down that the Investigating Officer, after seizure of the articles and arrest of the accused take them to the officer incharge of the police station, who would verify the facts of the case and affix his own seal and produced the same before Ilaqa Magistrate of the area. The perusal of the provisions of Section 55 of the Act, clearly reveals that the accused, the case property and the sample are required to be produced before the SHO, so as to ensure, that there was no false implication of the accused, and that actually a specific quantity of the contraband was recovered from the accused. No doubt, the provisions of Section 55 of the Act are directory, in nature, yet that does not mean that the same should be deliberately and intentionally breached. Since, there was deliberate and intentional breach of the provisions of Section 55 of the Act, by the Investigating Officer, the same cannot be condoned. In Gurbax Singh v. State of Haryana 2001 (1) RCR (Cri) 702 (SC), it was held that non-compliance of the provisions of Sections 52, 55 and 57, which are, no doubt, directory and violation thereof, would not ipso facto vitiate the trial or conviction. The irregularities in compliance of the provisions could be ignored but the Investigating Officer, cannot totally ignore these provisions, and, as such, failure will have bearing on the appreciation of evidence, regarding search and seizure of the accused. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the instant case. As stated above, the Investigating Officer, intentionally and deliberately breached the provisions of Section 55. He could not say that since the provisions of Section 55 are directory, in nature, he was not bound to comply with the same. If such a stand of the Investigating Officer is taken, as correct, then the provisions of the Act, which are directory, in nature, would be flouted with impunity, by him. Compliance of the said provisions is an indicator, towards the reasonable, fair and just procedure, adopted by Om Parkash, SI, during the course of search and seizure. Non-compliance of such a provisions, deliberately and intentionally, must be viewed with suspicion. Legitimacy of the judicial procedure may come under cloud, if the Court seems to condone acts of violation of statutory safeguards, committed by an authorized officer, during search and seizure operation. Such an attitude of the investigating agency cannot be permitted. Intentional and deliberate breach of the provisions of Section 55 certainly cause prejudice to the accused and cast a doubt on the prosecution story.

Thus, while taking stock of these circumstances, I come to the conclusion that the view taken by the trial Court recording the conviction of the accused is not reasonably possible. The judgment having suffered from serious improbabilities has been rendered as invalid, warranting interference by this Court.

For the reasons, recorded above, this appeal is accepted; impugned judgment is set aside and the accused is acquitted of the charges framed against him. He is directed to be set at liberty. Bail bond/surety bond, furnished by him, stand discharged. Fine if deposited, be refunded.