Khuba Ram alias Khuba vs State of Haryana

Dr. Sarojnei Saksena, J.

Appellantaccused is convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ''the Act'') for possessing 250 grams of opium without a licence and is convicted and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. One Lac and in default of payment of fine to undergo further rigorous imprisonment for 3 years. He has filed this jail appeal against that conviction and sentence.

Brief facts of the case are that on the intervening night of 1/2.1.1986 Sub Inspector Zile Singh was on patrol dutyalong with Head Constable Jagmal Singh and constables Dharam Pal and Mansa Ram at Garhi Bolni Chowk, Rewari. The accused was going from the side of the workshop. On seeing the police party, he tried to retrace his steps. Zile Singh apprehended the accused. He was found carrying jerican containing illicit liquor. When his personal search was taken, it was found that he was having 250 grams of opium wrapped in a wax paper in the inner pocket of his coat. Sample of 5 grams was separated. Opium was weighed and sealed in two small parcels. They were sealed with the seal of Zile Singh. Ruqa was sent to the Police Station. On the basis of the ruqa, FIR was registered. After completing the usual investigation at the spot, accused and the seized contraband were brought to the Police Station. The case property was deposited in the Malkhana. Thereafter, sample was sent to the Chemical Examiner, who after analysis confirmed that it was opium. On these facts, challan was filed.

Accused denied the guilt. His plea was that Zile Singh asked him to take him in his rickshaw without paying fare for it. As he declined, he has been falsely implicated in this case. He did not adduce any evidence in defence.

Prosecution examined Zile Singh PW.2 and Dharam Pal PW.1 tendered affidavits of Moharrir Head Constable and Constable as well as the report of the Chemical Examiner in evidence. The trial Court relying on the prosecution evidence held the appellant guilty of the said offence, convicted and sentenced him accordingly

The learned counsel appearing for the appellant contended that in this case provisions of section 50 of the Act were not complied with. Zile Singh was going on patrol duty at the relevant time when on suspicion, he apprehended the accused. He ought to have apprised him of his statutory right to give his personal search either before a Gazetted Officer or a Magistrate. Since this mandatory provision is not complied with, the whole of the trial is vitiated and the appellant is entitled to acquittal.

This contention has little force. The Apex Court in State of Punjab v. Balbir Singh, 1994(1) RecentCR 736 has held that in case of a chance recovery, the provisions of section 50 of the Act are not attracted. From the evidence of Zile Singh PW.2 and Dharam Pal PW1, it is evident that at that hour of night, they were going on patrol duty. They were not having any secret information or Zile Singh was not having any reason to believe from personal knowledge that accused was carrying opium. Hence, the provisions of Section 50 of the Act are not attracted.

It is vehemently contended by the learned Counsel that no independent witness was joined by Zile Singh before taking personal search of the accused. Hence, on this count also accused is entitled to acquittal as the statements of these official witnesses do not inspire confidence and there is no corroboration from any independent source. Provisions of Section 100(4) of the Code of Criminal Procedure are applicable when such search is made but it is not mandatory. It depends on the facts and circumstances of the case. If the Investigating Officer had no time or opportunity to associate any independent witness and thereby no independent witness is called, the evidence of search and seizure cannot be doubted simply on the ground of official mantle of those prosecution witnesses. The Court has to bear in mind that when corroboration from independent source is not forthcoming, the statements of the official witnesses are required to be scanned very minutely and if their statements do not suffer from any infirmity and are reliable and dependable, order of conviction can be awarded. I have mentioned above, the accused was apprehended at midnight. Zile Singh PW2 has stated that a Tea Stall was open near the place of recovery but neither he nor Dharam Pal PW have stated as to why independent witness was not called from that shop. Dharam Pal PW has testified that Zile Singh procured a tin box from the shop. He also got weighing scales and weights to weigh the opium. According to Dharam Pal, Tea Stall holder was sent to bring tin box and weighing scales, he brought these articles within ten minutes but conversely Zile Singh has stated that he sent Mansa Ram to bring scales and weights but he does not know from where he brought them. Mansa Ram has not been examined. Thus, from the statements of these witnesses, it is apparent that near the place of recovery, a tea stall was open. Shopkeeper was present on the shop, still no attempt was made to join him as a witness. The statements of both these prosecution witnesses are contradictory on the above material point. Dharam Pal has further stated that Zile Singh offered his personal search to the accused but he declined while Zile Singh PW.2 is totally silent on this point. Thus, the statements of both these witnesses are contradictory on material points and are not wholly reliable. Zile Singh deliberately avoided to join independent witnesses though they were available near the place of recovery.

Zile Singh has stated that 250 grams of opium was seized from the inner pocket of the coat of the accused. 5 grams of opium was separated as sample and both the parcels were duly sealed by him with the seal of ''JS''. He brought both the parcels to the police station and deposited the property with Moharrir Head Constable of Police Station, Rewari. Affidavits of Moharrir Head Constable Sube Singh Ex.PE and that of Constable Pardip Kumar Ex.PF along with Chemical Examiner''s report Ex.PD were tendered in evidence. The defence counsel declined to crossexamine these deponents. Both these deponents have stated that till the sample was sent to the Chemical Examiner, the seals were not tampered with. From the report Ex.PD, it is evident that on 16.1.1986, the sample was sent to the Chemical Examiner. It was received in the Laboratory on 20.1.1986. The report was given on 3.3.1986. There is no explanation for this inordinate delay that why the property was sent after 15 days to the Laboratory for analysis. This fact by itself, causes a dent in the prosecution story.

The appellant''s contention in the trial Court was that Zile Singh used to exploit the services of the accused by asking him to leave him in his rickshaw from one place to another without paying fare. As on the relevant night also Zile Singh made such a request and as he declined, he was taken to Police Station and was, thus, falsely implicated in the case. Since only a recovery of 250 grams of opium is shown this small quantity of opium can be planted as well.

No other point is pressed before me.

I have discussed above that in this case though independent witnesses were available, Zile Singh PW.2 deliberately did not join any such witness at the time of search and seizure. Further the statements of PW.2 Zile Singh and Dharam Pal PW.1 are contradictory on material points and according to me they are not wholly reliable witnesses. In such cases, there is a growing tendency of the Police Officials not to join independent witnesses. This Act provides for punishment of minimum 10 years, with a fine of Rs. one lac. Hence, stringent provisions are made in the Act itself to safeguard the interest and liberty of the citizens. If these provisions are deliberately avoided, the accused is entitled to the benefit of doubt.

Accordingly, the appeal is hereby allowed. The accusedappellant is acquitted of the said charge. He be released forthwith, if not required in any other case. Fine if deposited, be refunded to the appellant.