Kewal Krishan vs State of Punjab

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 18.1.1999, passed by the court of the Additional Sessions Judge, Faridkot, who convicted the appellant u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to undergo R.I. for two years.

The brief facts of the case are that on 15.3.1997, SI Roor Singh, who was posted in CIA Staff, Faridkot, accompanied by ASI Bachan Singh, ASI Gurmej Singh and a few other police officials left CIA Staff for checking of anti social elements and for patrolling in a Govt. Canter bearing registration No. PG 04 3068, which was being driven by Sarabraj Singh. The police party was going from village Jalaleana to village Dwareana along the metalled road. When the police party reached near the triangular on the link road in the area of village Dwareana, accused Kewal Krishan, while driving Maruti Car bearing registration No. DBE234 from the side of village Dwareana. On the basis of suspicion, SI Roor Singh gave a signal to the accused to stop the car. The appellant stopped the car and two bags were found lying on the rear seat of the car. SI told the appellant that he was having a suspicion that both the bags lying in the car contained some intoxicant articles and he wanted to take the search of the bags. The I.O. allegedly apprised the appellant about his legal right that he could get the search conducted in the presence of a gazetted officer or a Magistrate. The appellant declined the offer and reposed confidence in the I.O. and stated that his search could be taken by the I.O. himself in the presence of the other members of the policy party. To that effect, consent memo Ex. PE of the accused was reduced into writing, which was signed by the accused and attested by ASIs Bachan Singh and Gurmej Singh. The I.O. informed the DSP Kashmir Singh Bhinder through wireless message to reach at the spot and, accordingly the DSP reached at the spot. In the presence of the DSP, the I.O. took the search of the gunny bags lying on the rear seat of the car and poppy husk was found. The I.O. separated 250 gms of poppy husk from both the bags by way of sample and made a sealed parcel thereof. The remaining bulk weighed 39 kgs. 750 gms in each of the bags. The I.O. sealed the samples as well as the remaining bulk with his own seal bearing inscription ''RS'' as well as with the seal of the DSP bearing inscription ''KBS'', with his seal bearing inscription ''NSB'' and the entire case property was taken into possession. The I.O. prepared the specimen seal of both the seals and the seal of the I.O., after use was handed over to ASI Bachan Singh whereas the DSP retained his seal with him after use. From the supplementary search of the accused, currency notes of Rs. 90/ were recovered which were separately taken into possession. The car bearing registration No. DBE234 along with the registration certificate and the copy of the affidavit were also taken into possession vide memo Ex. PG. The I.O. sent ruqa, Ex. PB, to the Police Station for the registration of the case and the formal F.I.R., Ex.PB/1, was registered. The I.O. also prepared the rough site plan of the place of recovery, recorded the statements of the witnesses and disclosed the grounds of arrest to the accused and information was sent to the higher authorities. On return to the police station, the case property and the appellant were produced before SHO Darshan Singh, who verified the facts of the case and resealed the case property with his own seal bearing inscription ''DS''. The accused and the case property were produced before the Illaqa Magistrate. Samples of poppy husk were sent to the office of the Chemical Examiner, who vide report Ex. PC, declared the contents as poppy husk. On the completion of the investigation of the case, the appellant was challaned in the court of Illaqa Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and vide commitment order dated 19.9.1997, committed the accused to the court of sessions to face trial.

Vide order dated 14.10.1997 the appellant was chargesheeted u/s 15 of the Act on the allegations that on 15.3.1991 in the area of village Dwareana, the appellant was found carrying two bags of poppy husk, each contained 40 kgs. without any licence or permit and in Maruti Car No. DBE 234 and thereby he committed an offence punishable u/s 15 of the Act. The charge was read over and explained to the appellant, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined ASI Gurjan Singh, PW1, ASI Jaswant Singh, PW2, SI Darshan Singh, PW3, Mahesh Kumar, Clerk, PW4, ASI Bachan Singh, PW5, DSP Kashmir Singh Bhinder, PW6 and IO Roor Singh, SI, as PW7. Constables Nasib Singh and Gurcharan Singh and HC Darshan Singh gave their statements by way of affidavits, Exhs. PM, PN and PO, respectively. Finally, the prosecution (sic) the report of the Chemical Examiner, and closed the case.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The appellant denied those circumstances and stated as follows :

"I am innocent. I have been falsely implicated in this case. I was brought from my house from my village Burj Jawahar Singh Wala in the presence of respectables, i.e. Sarpanch Harbans Singh, Tari Singh, Panch and Darshan Singh, Panch. Nothing was recovered from me. This case was later on foisted upon me. The seals of the alleged case property were tampered with and were not produced on 16.3.1997 as alleged."

In defence, the accused examined Harbans Singh, Sarpanch, DW1, who deposed that nothing incriminating was recovered from the possession of the appellant and he was taken away and arrested by the police. Darshan Singh, DW2, also supported the defence of the accused.

The learned trial Court believed the prosecution story and rejected the defence version. The appellant was convicted and sentenced in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri Kuldip Singh, Advocate, for the appellant and Mr. S.S. Randhawa, DAG, Punjab appearing for the State of Punjab and with their assistance have gone through the record of this case.

The learned counsel of the appellant has assailed the judgment and order of the learned trial Court on the ground that section 50 of the Act has not been complied with in a proper manner and I find sufficient force in this contention. The counsel for the appellant submitted that it is the case of the prosecution that the appellant allegedly refused to seek the assistance of a Gazetted Officer or a Magistrate while making his alleged statement, Ex. PE and in such a situation, it was both obligatory and desirable on the part of the I.O. to call an independent witness to certify that the appellant had actually made such a statement. It will be very risky and hazardous on the part of the law courts to convict a person without any corroboration to the assertion as contained in Ex. PE.

The argument is acceptable to the court. It is the case of the prosecution itself that the recovery has been effected at day time and from a public road. The I.O. had ample opportunity to call an independent witness before recording the statement. Ex. PE of the appellant. This court is of the opinion that the appellant has not been informed to his valuable right u/s 50 of the Act.

Faced with this difficulty, the learned counsel for the State submitted that the search in this case has been conducted in the presence of DSP Kashmir Singh Bhinder and no prejudice has been caused to the appellant, if section 50 of the Act has not been complied with in a proper manner.

I do not subscribe to the argument raised by the learned counsel for the State. Section 50 of the Act has been incorporated in the Statute for the benefit of the accused to be searched. If the accused has dispensed with his valuable right u/s 50 of the Act to be searched in the presence of a Gazetted Officer or a Magistrate, there must be overwhelming and independent evidence to indicate that in fact the accused had shed his valuable right. In the present case, the I.O. though took the trouble to inform the D.S.P. at the spot, but has not taken the trouble to invite any independent witness from the nearby village or from the road so as to lend confidence in the mind of the court about the genuineness of the recovery. On the bald statement of the I.O. coupled with the statement of two police officials, it will not be proper to base the conviction. This aspect of the case has not been considered properly by the learned trial Court. Once it is held that Section 50 of the Act has not been complied with properly, the consequences are very fatal for the prosecution as held in State of Punjab v. Balbir Singh, 1994(1) RCR 736 and Faquira Khan v. State of Punjab, 1999(2) RCR(Criminal) 403. Reliance can also be placed on State of Punjab v. Om Parkash, 1996(3) RCR 145 and State of Punjab v. Kulwant Singh, 1996(3) RCR 363, respectively.

Resultantly, I allow this appeal and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to the rules. The appellant should be set at large forthwith, if not required in any other case.