Major Singh vs State of Punjab

Jitendra Chauhan, J.—This appeal is directed against the judgment and order dated 4.4.2003, passed by the Court of learned Judge, Special Court, Amritsar vide which, the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months, u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ''the Act''). The facts necessary for adjudication of the matter as narrated in para No. 1 of the impugned judgment are as under:--

On 19.3.1999, Inspector Balbir Singh alongwith other police officials was present in the area of village Dalam in connection with patrolling and checking of bad elements, when he received a secret information that accused is habitual in selling opium and he can be apprehended on the turn of village Mehalanwala. Accordingly, naka was proposed and the accused alighted from a bus. He was apprehended and he was informed that there is a suspicion that he was having some narcotic material and his search is to be conducted and whether he wanted his search in the presence of a gazetted officer or Magistrate and the accused wanted his search in the presence of gazetted officer and consent memo exhibit PA was prepared. Then a wireless message was sent to Mr. S.S. Mann, D.S.P., who reached at the spot and disclosed his identity to the accused as D.S.P. and a gazetted police officer and he also asked the accused about his right to be searched in the presence of a Magistrate or a gazetted officer. However, the accused reposed confidence in him and stated that his search can be conducted in his presence and accordingly, he attested the consent memo. Exhibit PA. Then as per the directions of Mr. SS Mann, D.S.P., search was conducted by Inspector Balbir Singh, which yielded recovery of opium from the bag carried by the accused in his right hand, out of which 10 grams was separated as sample and the remaining on weighing came to 490 grams. Both the sample and the bulk were made into parcels, duly sealed with seals ''BS'' and ''SSM'' Sample seals were also prepared and case property, sample and sample seals were taken into police possession vide memo. Exhibit PB. Further search of the accused yielded recovery of Rs. 250/-, which were taken into police possession vide memo, exhibit PC. Arrest memo, exhibit PD was also prepared. Ruqa exhibit PF was sent to the police station, on the basis of which FIR exhibit PF/1 was recorded. Rough site plan of the place of recovery exhibit PG was prepared with its correct marginal notes. On return to the police station, case property, sample and sample seals were kept in the double lock. On 30.3.1999, sample was sent to the office of the Chemical Examiner through Constable Gulzar Singh and report of the Chemical Examiner was received as exhibit PH, vide which opinion has been given that it was that of opium containing Morphine 2.8%.

After completion of the investigation, the challan was presented in the Court. The accused was charged u/s 18 of the Act, to which, he did not plead guilty and claimed trial.

In order to substantiate the charges, the prosecution has examined the following witnesses:--

P.W.1 Inspector Balbir Singh, the Investigating Officer, deposed that on receipt of secret information, they held naka on the turn towards Mehanwala and apprehended the accused and recovered opium from him. The case property, sample and sample seal were kept by him.

P.W.2 H.C. Baldev Raj, tendered his affidavit Ex. PJ in evidence.

P.W.3, D.S.P. SS Mann, in whose presence, the search was conducted and the sample seal was handed over to A.S.I. Gurinderpal Singh.

When examined u/s 313 of the Code of Criminal Procedure, the accused-appellant denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. Without examining any witness, he closed his defence.

The learned trial Court after observing that prosecution has successfully proved that the appellant was in possession of opium, which was fully established from the statement of the P.Ws. convicted and sentenced the appellant as noticed at the outset.

Feeling dissatisfied with the same, the accused- appellant preferred the present appeal, which was admitted on 24.4.2003.

It is averred in the grounds of appeal that provisions of Section 42 of the Act were not complied with. This being a case of secret information, no independent witness was joined. The recovery was effected from a bus stop, therefore, it cannot be said to be a secluded place.

On the other hand, the learned State counsel submits that the case of the prosecution is fully established and therefore, the learned trial Court has rightly convicted and sentenced the accused-appellant.

I have heard the learned State counsel and perused the record carefully.

It is the prosecution case that the recovery was effected on a secret information. A naka was held on the turn towards Mehalnwala, where the accused alighted from a bus. This situation at the time of recovery, ipso facto, speaks volumes of the fact that there could be no dearth as to the availability of independent witnesses. There being no cogent explanation for non-joining any independent witness, the exercise of the Investigating Officer is to be looked upon with suspicion.

Further, P.W.1 Inspector Balbir Singh, Investigator, in his cross-examination deposed that secret information was not reduced into writing. No information was sent to the senior police officer. Thus, the mandatory provisions of Section 42 of the Act have been violated. He has played a role of the complainant as well as the Investigator in derogation of the provisions of law.

In State of Punjab Vs. Balbir Singh, , and Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, , the Apex Court took a view that if there is total non-compliance of the provisions of Section 42 of the Act, then the same affects the prosecution case and to that extent, it is mandatory. Indeed the Hon''ble Supreme Court has punctuated the compliance of these provisions having regard to the stringent punishment provided under the Act. Ranjit Thakur Vs. Union of India (UOI) and Others, , it has been ruled that the procedural safeguards should commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise. The severer the punishment, greater the care to be taken to see that all the safeguards provided in the statute are scrupulously followed. In case The State of West Bengal and Others Vs. Babu Chakraborty, , the Apex Court came to conclude as under:

Great significance has been attached to the mandatory nature of the provisions, keeping in mind the stringent punishment prescribed in the Act. This Court has attached great importance to the recording of the information and the ground of belief since that would be the earliest version that will be available to a Court of law and the accused while defending his prosecution. This Court also held that failure to comply with Section 42(1), proviso to Section 42(1) and Section 42(2) would render the entire prosecution case suspect and cause prejudice to the accused.

In the present case, the recovery was effected on 19.3.1999, whereas, the sample parcels were sent to the office of the Chemical Examiner on 30.3.1999. The said delay has not been explained by the prosecution. The seals remained with the police officials, therefore, the possibility of tampering with the samples and the case property cannot be ruled out.

P.W.1 Inspector Balbir Singh, in his cross-examination deposed that he knows what is C.S.F.L. form. It was not filled up at the spot. He did not fill in the C.S.F.L. form. The said statement stands corroborated by P.W.3 D.S.P. SS Mann.

In Bhola Singh Vs. State of Punjab, , the C.F.S.L. form was not prepared at the spot nor deposited in the malkhana. Filling up of such form at the spot is a very valuable safeguard to ensure that the sealed sample is not tampered with till its analysis by the Forensic Science Laboratory. It was held that such circumstance would be fatal to the prosecution case.

In the case in hand, C.F.S.L. form was neither filled up at the spot nor deposited in the malkhana. The seal remained in the custody of a police official. These circumstances are fatal to the prosecution case.

Thus, palpably the provisions of Section 55 ibid though, the same are merely directory in nature as ruled in T. Paul Kuki alias Pabul Youthhand alias T.P. Kuki Vs. The State of West Bengal, , have not been complied with but inter alia the prejudice has been caused to the appellant for non-observance of the same. As follows from the record, A.S.I. Gurinder Pal Singh, to whom the seal was handed over by D.S.P. SS Mann, could not be examined being won over by the accused whereas H.C. Baldev Raj, tendered his affidavit in evidence, have not been offered for their cross-examination by the accused.

The Division Bench of this Court observed State of Punjab Vs. Surjit Singh, , that when the prosecution alleged that a material witness has been won over by the accused, it is still necessary that such witness must be examined to elicit truth. In view of the forgoing discussion, this appeal succeeds and is accepted by setting aside the impugned judgment and order of sentence. The appellant is hereby acquitted of the charged offence. His bail bonds shall also stand discharged.