Keshar Singh vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal filed by Keshar Singh son of Mohan Singh and has been directed against the judgment dated 23.8.1995 and order dated 25.8.1995 passed by Addl. Sessions Judge, Bhiwani, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to `the Act'') and sentenced him to undergo R.I. for a period of ten years and to pay a fine of Rs. 1 lac; in default of payment of fine the appellant was directed to further undergo R.I. for 2 years.

The brief facts of the case are that on 4.11.1991 Inspector Jai Singh of CIA Staff, Bhiwani (Investigating Officer of this case) along with SI Bhoja Ram, SI Hira Lal and other police officials in government jeep was present at T point Lahoru. Banwari Lal and Bajrang, the two witnesses, came there and they were also associated in the police party. After about 15 minutes, Keshar Singh appellant along with one other person came from the side of Lahoru and at the time the appellant was carrying a tin on his right shoulder and the second person Balwinder was carrying a pipi in his hand. On seeing the police party both of them tried to avoid it, but they were apprehended on the basis of suspicion as the Investigating Officer thought that these people might be carrying opium, ganja or charas etc. The Investigating Officer served a notice upon the appellant apprising him of his right to be searched in the presence of a Gazetted Officer or a Magistrate. The appellant felt satisfied and offered himself for search by the Investigating Officer himself. A memo to this effect was prepared and it was attested by the aforesaid two witnesses besides SI Bhoja Ram. Thereafter the search of the tin was taken and it was found to contain opium wrapped in a wax paper. On weighment it came to 8 kgs. The Investigation Officer separated 100 grams opium by way of sample and prepared a sealed parcel thereof. The remaining opium was separately sealed with the seal bearing inscription `PS''. The seal after use was handed over to SI Bhoja Ram. The appellant could not produce any licence or permit for the possession of opium. Resultantly intimation was sent to the police station for the registration of case, on the basis of which formal F.I.R. was registered. The Investigating Officer also prepared rough site plan of the place of recovery. He recorded the statements of the witnesses. He sent special report to the superior officer upon which DSP Bhup Singh arrived at the spot. The case property was produced before him. The DSP verified the facts and he also put his seal bearing inscription `HS'' on the sample and the residue. He took the seal from his Reader. Ultimately the sample of the opium was sent to the office of Chemical Examiner, who declared the contents as opium and on completion of the investigation of the case, the appellant was challaned in the Court of Area Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 5.1.1993 committed the appellant to the Court of Session.

Vide orders dated 8.2.1993 the appellant was chargesheeted under Section 18 of the Act on the allegations that on 4.11.1991 in the area of Lahoru he kept in his conscious possession 8 kgs. opium without any permit or licence and thereby committed an offence punishable under Section 18 of the Act. The charge was read over and explained to the appellant to which the pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Bhup Singh Yadav, D.S.P. PW 1, SI Balkishore PW2, HC Lal Chand PW3, Inspector Bhoja Ram PW4 and Jai Singh PW5. PWs Banwari Lal had Bajrang were given up by the prosecution on the ground that those have been won over by the appellant.

The documentary evidence which is on the record can be described as follows :

Ex. PA is the report which was sent to the higher authorities under Section 57 of the Act. Ex. PB is the affidavit of the constable who took the sample to the office of Chemical Examiner. Ex.P.C is the report of Director, F.S.L., madhuban, who has certified the presence of certain ingredients so as to constitute the sample as opium. Ex. PD is the affidavit of HC Lal Chand. Ex.PE is the notice which was given to the appellant under Section 50 of the Act by the Investigating Officer in the presence of Banwari Lal, Bajrang and SI Bhoja Ram. Ex. PF is the recovery memo, while Ex. PG is the ruqa was sent to the police station for the registration of case, on the basis of which formal F.I.R. Ex.PV/1 was recorded and the special report of the F.I.R. was received by the Area Magistrate on 4.11.1991 at 7.00 p.m. and finally Ex. PH is the rough site plan of the place of recovery.

Statement of the appellant was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put in him. The appellant denied those circumstances and stated as follows :

"I am to submit that I had gone to village Nalabari on 25.10.1991 to purchase a piece of land as my other relatives had left Punjab and had settled there. I also wanted to settle there. The bargain of the land could not be struck as the owner of the land was not available. I, therefore, sent a telegram through Bharpur Singh of Nalabari from Jhunjhunu to Karnail Singh so that he may inform my family members at my village about my stay over there. I left Nalabari on 2.11.1991 for my village but was detained on the way at Lahoru by the police treating me as a terrorist and later on I was involved in this case. False proceedings were initiated against me and I was made to sign all the papers in the Police Station and detained illegally. I am innocent."

When called upon to enter into his defence, appellant examined Bharpur Singh DW1, Karnail Singh DW2, Banwari DW3 and Ashok Kumar, Ahlmad DW4. It may be mentioned here that Banwari DW3 is the same person who was incidently present with the police party in whose presence the alleged recovery of the opium was made and I will deal with the statement of Banwari in the subsequent portion of this judgment in order to meet the contention raised by the learned Counsel for the appellant.

The learned trial Court for the reasons given in the impugned judgment as contained in paras No. 13 onwards believed the story of the prosecution and convicted and sentenced the appellant in the manner as stated above, and aggrieved by his conviction and sentence, the present appeal.

I may also certify here that the High Court has gone minutely through the reasons which have been advanced by the trial Curt in recording the conviction against the appellant. This appeal I am disposing of with the assistance rendered by Mr. R.S. Ghai, Senior Advocate, who appeared on behalf of the appellant, Mr. J.S. Ahlawat, Advocate appearing on behalf of the State and with their assistance I have also gone through the record of this case.

The first argument which was raised by the learned Counsel for the appellant is that Section 50 in this case has not been complied with and, therefore, the appellant is entitled to acquittal on this very ground. The learned senior counsel wanted to point out the defect in the consent statement Ex. PE by stating that a perusal of this memo would show that the consent statement has only been thumb marked by appellant Keshar Singh and has been attested by Bajrang PW, who put his signatures in Hindi and Banwari Lal PW, who also put his thumb impression besides SI Bhoja Ram, who, of course, signed in English. The learned senior counsel submitted that Keshar Singh appellant is an illiterate person as is evident from his thumb impression and in these circumstances it can be reasonably inferred that the notice under Section 50 was not read over and explained to the appellant, whose thumb impression might have been obtained by the Investigating Officer on a blank paper and thereafter the consent statement has been fabricated. I do not subscribe to the argument raised by the learned Counsel for the appellant. A perusal of memo Ex.PE would show that the appellant was apprised of his right under Section 50 of the Act as to whether he wanted to give the search in the presence of a Gazetted Officer or in the presence of a Magistrate. The appellant reposed confidence in the Investigation Officer. Resultantly, the proceedings were recorded in Ex.PE and Keshar Singh put his thumb impression in the presence of two independent witnesses namely Banwari Lal and Bajrang besides SI Bhoja Ram. The zone for consideration is whether it is a good compliance under Section 50 of the Act. The provisions of Section 50 have been introduced in order to safeguard the interest of a person upon which there is a reasonable suspicion that he may be carrying some narcotic drugs. Since the provisions of Section 18 are very stringent, the law courts have always taken care of that aspect. The law courts have insisted upon that in case accused wants to shed a very valuable right in favour of the Investigating Officer, it should not be readily inferred that the person to be searched has given a consent in favour of the Investigating Officer, because nobody would like to invite the trouble unnecessarily. In such an eventuality the mind of the court should be satisfied with some evidence that the statement which the accused has made is voluntary and that such statement at least has been attested by some persons, who may not be under the influence of the police. In the present case the statement of Keshar Singh has also been attested by two persons namely Banwari Lal and Bajrang besides SI Bjoja Ram. This Court is inclined to give the benefit to the appellant so far as the attestation of SI Bhoja Ram is concerned but the attestation of Banwari Lal and Bajrang on Ex. PE shows that the Investigating Officer at that point of time did not want to leave everything with him. He shared his proceedings with Banwari Lal and Bajrang, whose services were obtained for the purpose of attestation of recovery in this case. It is very unfortunate that when the police tries to associate independent persons in the investigation, such persons ultimately for one reason or the other and many a time under the pressure of the accused do not assist the administration of justice, as a result of which such behaviour on the part of the independent witnesses leads to miscarriage of justice. If the Investigating Officer had not associated any person at the time of recording of statement of Keshar Singh appellant and that he had only taken the assistance of SI Bhoja Ram, I would have agreed with the counsel for the appellant straightaway by holding that the statement as contained in Ex.PE is not a satisfactory proof. But once the Investigating Officer has taken the assistance of two persons who have put their thumb impressions and signatures, this would show that the intention on the part of the Investigating Officer was honest. If at a subsequent period Banwari Lal and Bajrang are not inclined to support the allegations of the prosecution under the influence of the accused or for any other reason, the benefit of this thing cannot be given to the appellant. The learned Counsel for the appellant has relied upon a Division Bench authority reported as 1997 Cri.L.J. 4611, State of Punjab v. Om Parkash and submitted that in similar circumstances the Division Bench of this Court has disbelieved that the provisions of Section 50 have been complied with. I have considered this authority and in my opinion this authority will not come to the rescue of the appellant. Rather the stress of the ratio is that when an accused sheds his right in favour of the Investigating Officer, his statement should be attested by independent witnesses and in the presence of such attestation the same cannot be acted upon or taken into the evidence of the accused having agreed to be searched by the Investigating Officer himself and especially when the accused is illiterate. I would like to quote in extenso the observations of the Hon''ble Division Bench so as to appreciate the contention raised by Mr. Ghai

"......So where the accused is alleged to have subscribed his thumb impression to the memo, by and under which the accused is alleged to have given his consent for being searched by the Investigating Officer himself, and when it is not attested by independent witnesses, the same cannot be acted upon or taken to be evidence of the accused having agreed to be searched by the Investigating Officer himself. This is especially so when it is seen that the accused is illiterate which is evident from the fact that he only subscribed his thumb impression to the alleged consent memo."

At the cost of repetition I may say that in the present case the consent memo Ex. PE has been attested by two witnesses though they were not examined by the prosecution on the plea that they are not inclined to support the case of the prosecution.

The second argument which was raised by the learned Counsel for the appellant is that as per the agreed case of the prosecution the recovery was effected in the presence of two witnesses and those witnesses have not been examined. One of the witnesses has appeared as defence witness and he has categorically stated that nothing was recovered from the possession of the appellant and, therefore, a reasonable doubt has been created in the story of the prosecution. So far as the factual scenario is concerned, nobody can dispute it. The documents which have been prepared at the spot and especially the consent memo evidently indicate that the recovery has been effected in the presence of Banwari Lal and Bajrang besides SI Bhoja Ram. Banwari Lal appeared as DW3. He deposited before the trial Court that he used to run a tea shop by the side of the office of C.I.A. Staff, Lahoru. Bajrang, his cousin, was also with him in that shop and they used to run the business jointly. This witness stated that he saw Keshar Singh in the C.I.A. Staff about 33/4 years back while serving tea inside the staff. He enquired from Keshar Singh as to why he was sitting there and he told him that he was sitting there for the last three days because the police was suspecting him to be a terrorist. Banswari Lal stated in his examinationinchief that he did not join the raiding party with the police and nothing was recovered from the possession of the appellant and his thumb impressions were obtained by the police of CIA Staff on certain documents but those were not read over to him. Is this statement of Banwari inspires confidence is a point for consideration. In the crossexamination he admitted that on the day when he met Keshar Singh in C.I.A. Staff, he had served 10/12 cups of tea though he might have prepared 100 cups of tea on that day. He did not have any record about the articles which he supplied to the detenus of the C.I.A. Staff. A particular suggestion was given to Banwari that he had been won over by the appellant and for that reason he had deposed falsely. The documentary evidence which has been relied upon by the prosecution would show that this witness is not only the attesting witness of the recovery memo but he is also the attesting witness of the consent statement. If his signatures/thumb impressions or that of Bajrang were obtained on blank papers under threat or duress or that they were introduced as false witnesses, this Court would always expect in natural circumstances that these witnesses would complain to the higher authorities against the conduct of Inspector Jai Singh or SI Bhoja Ram. They could send some telegram here or there. They could even file a complaint before the Area Magistrate. The gospel statement of DW3 that nothing was recovered from the possession of the appellant cannot be accepted on its face value when the conduct of Banwari Lal and Bajrang does not inspire any confidence. It is true that Banwari Lal and Bajrang were known persons to Inspector Jai Singh and that is the reason that on seeing the police party they stopped at the T point and they were associated. It cannot be lost sight also that from the possession of the appellant a huge quantity of opium weighing 8 kgs. has been recovered. From this a prima facie indication can be gathered that the appellant must be dealing in the trade of opium and such unscrupulous person can win over the independent witnesses with the help of money etc. The character of our society has deteriorated. Most of the citizens in the modern times have lost the killing instinct to assist the administration of justice. They have developed the tendency to criticise the law courts and law enforcing agencies and nobody would like to come forward to assist the law or to support the law. Grumbling has become a habit. It is true that in order to assist the law and in order to help the administration of justice time is consumed. But somebody has to bell the cat. If the serious offences like the present one are allowed to go unpunished on account of the withdrawal of the assistance given by the witnesses at one point of time, the very object of the Act will go into drains. In spite of the fact that DW3 Banwari has not supported the allegations of the prosecution, I have scanned through the testimony of SI Bhoja Ram and Inspector Jai Singh besides that of DSP Bhup Singh Yadav, who immediately came to the spot on receipt of special report, as to whether they are telling a truth or that there is some doubt in their statements so as to extend the benefit to the appellant. After scanning their statements with care and caution this court has come to the conclusion that they are truthful witnesses.

The third submission which has been raised by the learned Counsel for the appellant is that in this case the directory provisions of Sections 52, 55 and 57 of the Act have not been complied with. The counsel submitted that the special report Ex.PA does not bear any date and time on the part of the D.S.P., who came to the spot on receipt of the information. It has been held by the Hon''ble Supreme Court and even by the Division Bench in the authorities relied upon by the learned Counsel for the appellant that the provisions of Sections 52 and 57 are not mandatory in character. The object of Section 52 is that the person to be arrested must be apprised of as to why he has been taken into custody. There is a clear mention in Ex.PF that the appellant was given a notice under Section 50 of the Act. He was even apprised of that from his possession 8 kgs. of opium has been recovered, out of which a sample of 100 grams was prepared and the residue 7 kgs. and 900 grams was separately sealed. Is it not a sufficient compliance of Section 52 ? The answer of this court is in the affirmative. Section 57 lays down that whenever any person makes any arrest or seizure under this Act, he shall within fortyeight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate superior official. DSP Bhup Singh Yadav while appearing as PW1 categorically stated that on 4.11.1991 when he was posted as DSP, Loharu, he received a special report of this case, he reached the spot at 2.00 p.m. along with his Reader in a government vehicle and resealed the case property with the seal bearing inscription `HS''. In the crossexamination he also stated that Constable Man Singh informed him about the recovery. In fact, Ex.PA is the carbon copy of the special report which was sent to the higher authorities and for that reason it does not bear the signatures of the D.S.P. But from the statement of the D.S.P. it is categorical that he did receive the special report of the present seizure and arrest and thereafter he came to the spot. So far as Section 55 is concerned, the case property was resealed by the DSP and thereafter it was preserved with the seals intact so that it may not be tampered with till it reaches the office of Director, Forensic Science Laboratory. The noncompliance of Sections 52 and 55 in its individual aspect cannot be taken as fatal for the prosecution. Every case will have to go on its own scenario. No adverse inference can be drawn against the prosecution.

It has been held in State of Punjab v. Labh Singh, 1997(1) Recent C.R. 565 as under :

"In view of the settled legal position that the accused has valuable right to be informed of his right to be searched in the presence of a Gazetted Officer, the search officer invariably would conduct the search subserving the salutary right given under Section 50. Each case should be considered in the light of the facts and circumstances in which the contraband was seized viz., time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport or place of concealment, whether there was proper opportunity to the police to secure the presence of a Gazetted Officer, whether the delay in search and seizure would result in the escape of the accused from arrest or contraband would be destroyed or whisked away and not of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The Court has to consider each case on its own setting. In view of the absence of any writing from the accused of the effect that the accused was informed of his right and that the same was waived taken by the officer who conducted the search and seized the contraband and in view of the long delay that has taken place, we think that these may not be cases warranting interference with the order of acquittal at this distance of time."

So far as the recovery of opium from the possession of the appellant is concerned, it stands proved from the statement of SI Bhoja Ram PW4, who stated that from the search of the pipa opium was recovered which came to 8 kgs. 100 grams of opium was separated as sample and the remaining 7 kgs. and 900 grams was separately sealed and the entire case property was taken into possession vide recovery memo Ex. PF. PW5 Jai Singh also stated on the said terms. PW1 Bhup Singh Yadav also deposed that the appellant was arrested by the said Investigating Officer Jai Singh in the presence of two independent witnesses. No circumstance has been pointed out from the evidence by the learned senior counsel so as to disbelieve the testimony of three public officials. Once the recovery stands proved, the onus lies upon the appellant to show that he was not in conscious possession of the opium. The defence which has been taken up by the appellant is totally false. In Roop Singh v. State of Punjab, 1996(1) Recent CR, 146 , it has been laid down that once conscious possession of contraband stands established, the onus lies on the accused to show that he was not in conscious possession of contraband. Also it was held that when the independent witnesses have been given up by the prosecution on the plea that those have been won over, no adverse inference can be drawn because the Panch witness being human beings are quite exposed and vulnerable to human feelings of yielding, browbeating, threats and inducements and that such witnesses being won over is fully justified in presentday situation prevailing in society. It was further observed in this very authority that once the court is satisfied that the provisions of Section 50 have been complied with, in such a situation the contention of the accused that grounds of arrest were not disclosed to him as required under Section 52 is not tenable because the circumstances of recovery and arrest themselves are sufficient to make the accused know substance of offence. It was the due compliance of Section 52. I have already stated above that the circumstance under which the arrest of the appellant has been effected and the documents prepared at the spot, would show that the appellant was well aware as to why he was detained. The ratio of Roop Singh''s case (supra) is applicable to the facts in hand.

No other point was urged.

Resultantly, I do not see any merit in this appeal and dismiss the same.