Lal Singh vs State of Punjab

Sarojnei Saksena, J.

Appellant Lal Singh has challenged his conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) for keeping in his possession one kilogram of opium on 23.3.1986 without licence for which he is sentenced to undergo rigorous imprisonment for ten years alongwith a fine of Rs. One lac and in default to further undergo rigorous imprisonment for five years.

Brief facts of the case are that on 23.3.1986 Head Constable Amritpal Singh of Police Station Bhikhi was going on patrolling alongwith Constables Sukhjiwan Singh, Paramjit Singh and Lachhman Singh from village Samaon to Khiwan Kalan. When they were half kilometer away from village Khiwan Kalan, they saw accused going ahead of them. On suspicion, he was apprehended. He was carrying a jhola which contained a tine packet containing the said contraband. A sample of 10 grams was separated. The sample and the remainder were sealed separately with the seal bearing the inscription ''APS''. Recovery Ex.PA was drawn. Ruqa Ex.PC was sent to Police Station Bhikhi whereupon First Information Report Ex.PC/1 was recorded by SHO Sukhdev Singh. Rs. 150/ were also recovered from the accused at that very time. After completing the investigation on the spot Head Constable Amritpal Singh brought the accused and the contraband to the Police Station. Contraband was deposited in the malkhana of Police Station. Later on sample was sent to Chemical Examiner for examination who opined that it contained morphine. On these facts, the appellant was charged under section 18 of the Act.

Accusedappellant denied the guilt. He pleaded false implication. According to him, on 22.3.1986 he was waiting at the bus stand for going to Mansa where he was to attend a case pending in the Court of Magistrate at Mansa. From the bus stand, he was arrested by the Police and later on this false case was foisted on him. On 22.3.1986 an application was moved on his behalf to the effect that he had been arrested by the Police. Thereupon, the Magistrate called for a report from Police Station Bhikhi. He had examined Harbans Singh in his defence and produced photo copy of the said application Mark A and Affidavit Mark B.

During trial, prosecution examined constable Sukhjiwan Singh PW1 and Head Constable Amritpal Singh PW2. Affidavits of Constable Dayal Singh (Ex.PF) and of AMHC Jangir Singh (Ex.P.G) were tendered in evidence. Report of the Chemical Examiner was also tendered in evidence.

Finding the prosecution evidence credible and reliable, the learned trial Court held the appellant guilty of the said offence and sentenced him accordingly.

From the record few facts emerged which requires an explanation by the prosecution. Head Constable Amritpal Singh PW2 is corroborated by Sukhjiwan Singh PW1. Both these witnesses have deposed that on 23rd March 1986 at about 6.30 a.m. they apprehended the accused near village Khiwan Kalan and found that Jhola being carried by the accused contained one kilogram of opium. 10 grams of opium was separated as sample and was duly sealed by the impression ''APS''. After the use, seal was handed over to Sukhjiwan Singh constable. Ruqa Ex.PC/1 was sent to police station whereupon FIR Ex.PC was recorded. Thereafter, the seized contraband and the accused were brought to the police station. At the time of the alleged search, no independent witness was joined. Head Constable Amritpal Singh PW2 has admitted in his cross examination that he did not deposit the case property with the SHO/SI Sukhdev Singh nor his seal was affixed on the contraband.

Secondly on 22nd of November 1986, Additional PP tendered in evidence affidavits Ex.PF and Ex.PG of Constable Dial Singh and AMHC Jangir Singh. He has also stated that both the deponents are present in the Court and, thereafter, giving up other PWs, he closed the prosecution evidence. These facts are missing from the order sheet of this date wherein it is simply recorded that the statement of two PWs are recorded, prosecution evidence concluded and the case is adjourned for statement of the accused under Section 313 Cr.P.C. Thus, it is apparent that these deponents were not tendered for crossexamination by the defence. Therefore, these affidavits have no evidentiary value as accused had no opportunity to cross examine these witnesses.

Further, these affidavits are not in accordance with the provision of Section 297(2) of the Cr.P.C. The verification clause is not in accordance with law. Lastly, when the accused was examined under Section 313 Cr.P.C. no question was put to him that after the seizure on 23rd March, 1986 till 3.4.1986 the date on which the sample was received in the laboratory by the Assistant Chemical Examiner, the seal of the sample remained intact. Because of the said lacuna in the alleged link evidence, it cannot be concluded that after the recovery, the sample of the contraband was not tampered with by anybody till it was analysed.

The prosecution could not satisfy this Court that despite these lacunae, the prosecution evidence is believable and the accused appellant has rightly been convicted.

Section 55 of the Act lays down that after the seizure, the contraband should be placed before the SHO who should affix his seal and keep in the malkhana for being produced before the concerned Magistrate but the sealed sample was not produced before him nor he affixed his seal thereon. Thus, the mandatory provisions of Section 55 are violated which creates doubt in a prosecution story.

As pointed out above, the link evidence also suffers from the aforesaid lacunae. The prosecution has not proved beyond reasonable doubt that after the seizure the sample of the contraband was duly sealed on the spot and, thereafter, it was kept in safe custody in police, malkhana till it was sent to the Chemical Examiner for testing. The seal used on the sample remained with the Constable Sukhjiwan Singh who is posted at this very police station. The sample was sent to the Laboratory on 3.4.1986. During this period, it was not tampered with, this fact is not proved by the prosecution beyond reasonable doubt. The deponents Constable Dial Singh and AMHC Jangir Singh were not produced for crossexamination, their affidavits are also not in accordance with law and no question was put to the accused with regard to the fact that during this span of few days the seal on the sample remained in fact and it was not tampered with. Unless this fact is proved beyond reasonable doubt, it cannot be held on the basis of the statements of Constable Sukhjiwan Singh and of Head Constable Amritpal Singh PW2 that the contraband which was seized from the accused was analysed in the laboratory and it was found that it contained opium. The flagrant violation of the provisions of section 55 of the Act also causes dent in the prosecution story. The alleged link evidence loses its evidentiary value. The trial Court has utterly failed to consider the aforesaid facts while convicting the accused for the said offence. I find that because of the aforesaid lacunae the prosecution has utterly failed to prove beyond reasonable doubt that on 23.3.1986 appellantaccused was in possession on 1 kg of opium.

Accordingly, the appeal is hereby allowed. Conviction and sentence awarded to the appellant are hereby set aside. Fine if deposited be refunded to him.