Kulwant Singh vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgment/order dated 16.12.1995, passed by the Additional Sessions Judge, Amritsar, whereby appellant Kulwant Singh has been convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced to undergo rigorous imprisonment for 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 one year.

The facts necessary for the disposal of this appeal are that on 11.12.1988, S.I. Shamsher Singh of Police Station Bhikhiwind alongwith his companions was present in the area of village Bhikhiwind on the culvert of a drain, on the road running from Amritsar to Bhikhiwind. The appellant was sighted coming from the side of village Singhpura having a bag on his head. He was detained. S.I. Shamsher Singh told the appellant that the former had a suspicion that the appellant was carrying opium on his head. An offer was given to the appellant that if he so desired, he could be searched in the presence of a Magistrate or a gazetted officer. The appellant reposed confidence in S.I. Shamsher Singh. On conducting search of the bag, opium weighing 32 Kgs. wrapped in a glazed paper was recovered. 100 Gms. of the contents were separated by way of sample. The sample and the remaining contraband were converted into two separate parcels with the seal of ''SS'' and were seized vide memo. Exhibit PB. Ruqa (Exhibit PA) was sent to the Police Station, on the basis of which formal F.I.R. (Exhibit PA/1) was recorded. The case property alongwith the appellant were produced before Inspector Darshan Singh, S.H.O. of Police Station Bhikhiwind, who after verification affixed his own seal on both the parcels and directed the Investigating Officer to deposit the case property in the malkhana which was done accordingly. Sealed sample parcel was sent to the Office of the Chemical Examiner, On receipt of the report Exhibit PX, investigation was completed and a chargesheet was submitted to the Court.

A charge under section 18 of the Act was framed against the appellant, to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined 6 witnesses. S1 Amrik Singh (PW 1) had recorded the formal F.I.R. of this case, carbon copy of which is Exhibit PA/I. Constable Dalip Singh (PW 2) had tendered his affidavit, which is formal in nature. S.I. Sucha Singh (PW 3) and S.I. Shamsher Singh (PW 4) are the witnesses of the recovery. MHC Jagmohan Singh (PW 5) was the Moharrir Head Constable of the Malkhana with whom the case property was deposited. S.I. Shri Darshan Singh Mann (PW 6) was posted as S.H.O. Police Station Bhikhiwind on 11.12.1988 before whom the case property was produced and he had affixed his own seat on the sample parcel and the remaining case property and had directed the Investigating Officer to deposit the case property in the Malkhana. Exhibit PX, report of the Chemical Examiner was tendered in evidence.

In his examination under Section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded false implication. He stated that he was taken into custody by the police from his house 8 to 10 days prior to the alleged date of recovery and then was falsely implicated in this case. He examined two witnesses in his defence i.e. Lakha Singh (DW 1), Sarpanch of the village and Mukhtiar Singh (DW 2) another covillager. According to these two defence witnesses, the appellant was lifted from his house by the police, that no opium was recovered from him and thereafter he was falsely implicated in the case.

On an appraisal of the evidence produced by the parties, the trial Court disbelieved the defence version and while placing implicit reliance upon the prosecution witnesses, convicted and sentenced the appellant, as stated above. Hence this appeal.

I have heard the learned counsel for the parties and have perused the record of the trial Court.

Shri V.K. Chaudhary, Advocate, learned counsel for the appellant, has assailed the order of conviction on the grounds that the whole case has been fabricated by the police, that no independent witness was joined, although the police had the time and opportunity to join such witnesses, and that the provisions of Section 50 of the Act have not been complied with.

On the other hand, Shri I.P.S. Sidhu, learned Assistant Advocate General, Punjab, has argued that the provision& of Section 50 of the Act were complied with and a consent memo (Exhibit PB) was also prepared, that no independent public witness was available since those were the days of terrorism and that the police had no oblique motive in falsely implicating the appellant by planting a huge quantity of opium.

I have given my careful thought to the respective arguments advanced at the Bar.

The main question which falls for decision in this appeal is as to whether implicit reliance can be placed upon the testimony of SI Shamsher Singh (PW 4), SI Sucha Singh (PW 3) and Shri Darshan Singh Mann (PW 6), the then S.H.O. of the concerned Police Station. After carefully scrutinising their testimony, my answer is in the negative. The reasons are quite obvious. Firstly, it is highly improbable that S.I. Shamsher Singh or any one of his companions could have imagined that the appellant was carrying opium in the bag on his head when he was stopped and detained. Secondly, Exhibit PB is not a memo prepared in compliance of Section 50 of the Act. It is a memo prepared after the socalled recovery of the opium. Thirdly, Mark ''A'', a photostat copy of the report No. 25, dated 11.12.1988, recorded at Police Station Bhikhiwind regarding the return of ASI Shamsher Singh strikes at the core of the testimony of SI Shamsher Singh (PW 4) and D.S.P. Darshan Singh Mann (PW 6). According to SI Shamsher Singh (PW 4) and DSP Darshan Singh Mann (PW 6), the case property and the appellant were produced before SHO Darshan Singh and thereafter on his direction the case property was deposited in the malkhana. This version stands falsified by report No. 25 recorded in the roznamcha, which shows that ASI Shamsher Singh had deposited the case property in the malkhana and had put the appellant in the judicial lockup. If ASI Shamsher Singh had produced the case property and the appellant before the Officer Incharge of the Police Station i.e. S.I. Darshan Singh (PW 6), the same must have found mention in this report. Therefore, it becomes clear that the record as well as both the parcels were tampered with just to show the compliance of Section 55 of the Act. All these facts create a grave suspicion regarding the credibility of these witnesses.

At the conclusion of the trial, the prosecution can succeed only on discharging the initial burden of proving its case against the accused, and strongest of suspicion does not constitute the proof required. Even though the statute does not make it obligatory, as a rule of prudence, the Police Officer should carry out the search, if it is possible, to secure the presence of independent persons in their presence. The Court will be extremely reluctant to uphold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and improbable to procure the presence of such witnesses.

In the present case, police party consisted of 7 police personnels as per admission of SI Sucha Singh in his crossexamination. The place of recovery was at a distance of 1 KM. from the police Station, and is on, the Amritsar Bhikhiwind road. Constable Ajit Singh, driver of the police vehicle, was sent to Bhikhiwind to arrange the weights and measure. SI Shamsher Singh, the Investigating Officer has admitted that he had not asked Constable Ajit Singh to bring any witness with him. The time of detention and search is stated to be 3.30 p.m. Thus, it is clear that no effort was made either by S.I. Shamsher Singh or any other member of the police party, to procure independent public person before conducting the search of the appellant, although the police party had enough time, opportunity and means at its hand to procure the presence of independent and respectable public persons to witness the search of the appellant. The prosecution cannot take shelter behind the skirt of terrorism in such a serious case where the minimum sentence prescribed is 10 years. Since the testimony of the prosecution witnesses has not been found to be credible, the same cannot be accepted without corroboration from some independent source. As already stated, no independent witness was joined, nor any effort was made to procure the presence of such a witness. In these circumstances, the entire case of the prosecution becomes a suspect.

For the foregoing reasons. I hold that the prosecution has not, been able to prove its case against the appellant beyond reasonable doubt. Consequently, this appeal succeeds. The conviction and sentence of the appellant are set aside and he is acquitted of the charge under Section 18 of the Act. The appellant shall be released forthwith, if not wanted in any other case.