Kashmiri Lal @ Kala vs State of Punjab

V.S. Aggarwal, J.

This is appeal filed by Kashmiri Lal (hereinafter described as ''the appellant'') directed against the judgment and the order pertaining to the quantum of sentence dated 18.10.1994. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). By subsequent order of the same date, the appellant was sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. One lac. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for 2 years. The relevant facts of the prosecution case are that on 27.6.1991 ASI Sadhu Ram headed a police party. It comprised of Head Constable Gurdip Singh, Head Constable Balwinder Singh and certain other police officials. It held the picket at Talwan Chowk, Nurmahal. At about 12.30 a.m. the appellant was seen coming from the side of Talwan on foot and on seeing the police party, he retreated.

In the meantime, Rattan Singh, a public witness also reached there. He was joined in the police party. On suspicion the appellant was apprehended. He was asked as to if he wanted to be searched in the presence of some Gazetted Officer but the appellant reposed confidence in the Investigating Officer, ASI Sadhu Ram. The said Investigating Officer informed Inspector Harmel Singh, OfficerIncharge, Police Station, Nurmahal who also reached the spot. The appellant was carrying a plastic bag which contained a tin box of opium. 50 grams was taken as the sample and the rest of the opium was weighed and found to be 3 kilogram and 450 grams. The rest of the opium was placed back in the tin box. The sample and the rest of the opium were converted into two separate parcels and sealed with the seal of ''HS''. Both the packets were taken into possession vide recovery memo attested by the public witness Rattan Singh, Head Constable Gurdip Singh, Head Constable Balwinder Singh and Inspector Harmel Singh.

The seal after use was given to Rattan Singh. The ruqa was recorded and sent to the police station. On basis of that formal First Information Report was recorded. The Investigating Officer prepared the rough site plan and deposited both the packets in the Malkhana. Later the sample was sent for chemical analysis. On receipt of the report that contents were opium, report under Section 173 Code of Criminal Procedure was filed.

On perusal of the evidence, the learned trial court concluded that it has been proved beyond all reasonable doubt that 31/2 kilogram of opium was recovered from unlawful possession of the appellant and he was held guilty of the offence punishable under Section 18 of the Act. This was followed by the order of sentence already referred to above.

Aggrieved by the same, the present appeal has been filed. The first and foremost question raised by the learned counsel for the appellant was pertaining to noncompliance of the provisions of subsection (1) of Section 50 of the Act. It reads :

"50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate."

It is abundantly clear from perusal of subsection (1) of Section 50 of the Act reproduced above that a right has been conferred on a person who is to be searched under the provisions of Sections 41, 42 and 43 of the Act and he can insist that it be so done before the nearest Magistrate or the nearest Gazetted Officer. Thereupon he has to be taken there without unnecessary delay. The controversy as to if the said provisions were directory or mandatory finally culminated with the decision of the Supreme Court in the case of State of Punjab v. Balbir Singh, Judgments Today 1994(2) SC 108. It was held that it is mandatory.

The evidence of the prosecution in this regard is discrepant and untrustworthy. Inspector Harmel Singh PW1 the then OfficerIncharge of the police station Nurmahal supported the prosecution case by testifying that when he received the wireless message, he went to Talwan Chowk. The appellant had already been in custody of Sadhu Ram and that he was told that if he wanted his person could be searched before a Gazetted Officer or a Magistrate. The appellant had refused the offer. In other words, the statement made by the witness indicated as if the said offer was made to the appellant in his presence. ASI Sadhu Ram PW3, the Investigating Officer on the contrary makes the following statement :

"At about 10.30 a.m. accused present in court today was seen coming from the side of Talwan on foot. On seeing the police party he retreated. On suspicion accused was apprehended. At that time Rattan Singh PW reached there. He was joined with the police party. The accused was asked whether he wants to be searched in the presence of some Gazetted Officer but he reposed confidence upon me. I informed Inspector Harmel Singh SHO/PS Nurmahal. He reached at the spot."

The said statement negatives and brushes aside the impact of the statement made by the OfficerIncharge of the police station. In terms of the statement made by the Investigating Officer, such an offer was not made in presence of the Officer Incharge of the police station. The two star witnesses of the prosecution make contradictory and inconsistent statements. In addition to that no offer in writing had been given. It is true that law does not require that such an offer must be given in writing. No prescribed proforma has been taken care of, still when the evidence of the prosecution is not trustworthy in this background that only an oral offer was given assumes importance. It becomes difficult to digest and believe the version of the prosecution from the nature of evidence produced. It cannot, therefore, be held that there has been compliance of the mandatory provisions of Section 50(1) of the Act.

No less important is the other procedure prescribed in Section 55 of the Act. It reads :

"55. Police to take charge of articles seized and delivered. An officerincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station."

Under this provision a duty has been cast on the officerincharge of the police station to take charge of the said articles, keeping the same in his custody and if necessary to allow the sample to be taken. This is not an idle formality. The provision has been enacted to ensure that the case property remains in safe custody to avoid any tampering of the same.

A glance on the evidence on record leads one to conclude that it cannot be held that officerincharge of the police station was present on the spot so as to comply with the provisions of Section 55 of the Act. The statement of Inspector Harmel Singh PW1 cannot be accepted on its face value that on receipt of the message, he had gone to the spot. It transpires from the statement of ASI Sadhu Ram that instead of the officerincharge of the police station, it was Investigating Officer who deposited the case property in the Malkhana. If Officerincharge of the police station was on the spot, nothing prevented him from taking the case property and depositing it in the Malkhana. It has already been noticed above that even with respect to the offer contemplated under subsection (1) of Section 50 of the Act, the officerincharge of the police station made a contradictory statement. His presence at the spot is doubtful and cumulative effect of these factors makes the Court to conclude that provisions of Section 55 of the Act even had not been complied with.

Pertaining to the recovery of opium from the person of the appellant, the three witnesses namely PW1 Harmel Singh, PW2 Balwinder Singh ASI and PW3 Sadhu Ram ASI, all supported the version that opium was recovered from the person of the appellant. It was pointed out at the bar and is borne out from the record that one Rattan Singh public witness was joined in the said police party. He was given up during the course of trial as having been won over by the appellant. There is nothing unusual because if a witness has been won over and is given up, adverse inference should not be drawn against the prosecution. However, extra care and caution is required to be taken. But further fact that cannot be ignored is that Inspector Harmel Singh PW1 stated in his evidence that at the relevant time traffic was going on the road. No attempt was made to join any other witness. Balwinder Singh PW2 further admitted that place of recovery is situated in an inhabited area. There were shops on both sides of the road. Still no attempt was made to join any independent witness despite there being shops nearby. When an independent witness could be joined and has not been joined the statements of the official witnesses have to be taken with greater care.

Inspector Harmel Singh PW1 made a statement that from the search of the accused, one gunny bag was recovered which had a tin box containing opium. ASI Balwinder Sigh PW2 deposed that tin box was in a Jhola (bag with strings). By the time the Investigating Officer stepped into the witness box, it had become only a polythene bag from where the tin box was recovered. The change in version and the fluctuating evidence makes the recovery doubtful. It becomes difficult to believe and hold that it was proved beyond all reasonable doubt that opium was recovered from the person of the appellant.

For all these reasons given above, it must be concluded that it had not been proved beyond all reasonable doubt about the recovery of alleged opium from the person of the appellant. He is entitled to the benefit of doubt. Accordingly, the appeal is accepted and the judgment and order of sentence passed by the learned trial court are set aside. The appellant be set at liberty, if not required in any other case.