Makhan Chand vs State of Punjab

V.K. Bali, J. (Oral)

This is an appeal preferred by Makhan Chand son of Kapur Chand against the order of conviction and sentence passed by Additional Sessions Judge, Barnala, dated 17th August, 1995, vide which the appellant herein was held guilty of having committed an offence under section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act) and sentenced vide order of even date to undergo R.I. for ten years and to pay a fine of Rs. 1,00,000/ (one Lac) in default whereof he was to further undergo R.I. for two and a half years.

The prosecution version stems from the FIR recorded by S.I. Karam Chand PW2 which reveals that on 28th July, 1993 while he was posted as S.H.O. Police Station Kotwali, Barnala, he joined with him ASI Bhupinder Singh, H.C. Nishan Singh and some other police officials and proceeded for patrolling the area. When he along with his companions was proceedings from bus stand, Barnala towards byepass chowk Bajakhana and was about 50 yards short of chowk, he saw the appellant alighting from the bus with tin box in his hand. On seeing the police party, the appellant got perplexed and slipped towards Khatans on the pretext of urinating himself which caused suspicion in the mind of the police party. He was apprehended and was told that his tin box was to be searched and if he so desired, search could be made in the presence of a Gazetted Officer or Magistrate. The appellant, however, reposed confidence in the police and agreed to be searched by the police itself. On search of the tin box that the petitioner was carrying, 37,000, tablets were recovered. Two samples of 500 tablets were separated and sealed. The remaining 3600o tablets were put in an envelope and put into the tin box along with three distinct parcels with seal bearing letters K.C. he also prepared sample impression of the seal used as Ex. PC and handed over the seal after use to ASI Bhupinder Singh. He thereafter took into possession three parcels vide memo Ex. PD attested by ASI Bhupinder Singh and H.C. Nishan Singh. On further personal search of the appellant, he took into possession Rs. 32/ vide recovery memo Ex. PE. He also sent information Ex. PF from the spot to the police station for registration of case against the appellant on which formal FIR Ex. PF1 was recorded by MHC Gulshan Kumar. He further prepared rought site plan Ex. PF of the place of recovery with correct marginal notes. After completing the formalities, the challan was put against the appellant which also consisted of report of Chemical Examiner Ex. PA according to which the tablets contained Meconic acid and Morphine to the extent of 1.08%.

In the trial the prosecution endeavored to bring the offence against the appellant by examining two witnesses namely ASI Bhupinder Singh PW1 and S.I. Karam Chand PW2. Head Constable Gulshan Kumar appeared as PW3 but he is a formal witness and has tendered into evidence his affidavit Ex. Ph. when examined under section 313 of the Code of Criminal Procedure, the appellant stated that he was innocent. He was brought from Mansa in the presence of Rakesh Kumar son of Madan Lal and Surinder Kumar son of Sham Lal as the police wanted Surinder son of Hans Raj who was his cousin and thereafter, he was falsely implicated in the case. In defence the appellant examined Surinder Kumar DW1 who stated that he knew the accused who was running chemist shop at Mansa. On 26th of July, 1993 at about 4/5 P.M. two persons came to the shop of the appellant claiming themselves to be of police department. They told the appellant to go to the Police Station along with them as Surinder Kumar had called him. The appellant then went along with them after closing the shop. The witness further stated that he was present at the shop in connection with the purchase of some medicine. DW2 Surinder Kumar too was examined by the appellant. The witness stated that he was running a chemist shop at Mansa and on 26th of July, 1993, 2/3 Constables of Police Station, Barnala had come to his shop at Mansa and took him to police station, Barnala. He was, however, let off on the morning of 29th July, 1993. The appellant was his partner in the shop at Mansa and the police later on brought the appellant to police Station, Barnala. The appellant also examined Rakesh Kumar DW3. He stated that on 26th of July, 1993 at about 4.15 p.m. he was present at the shop of the appellant. Surinder Kumar was also present there at that time. Two Sikh gentlemen came there and told the appellant that they had come from Barnala police Station and that Surinder Kumar had called him. The appellant then accompanied them on foot. After 56 day Surinder Kumar told him that the accused had been involved.

The conviction has been primarily based on the statements of S.I. Bhupinder Singh PW1 and S.I. Karam Chand PW2. Mr. Rajiv Kataria learned counsel representing the appellant besides pointing out some discrepancies in the statements of PW1 and PW2 has also argued that the provisions of Section 50 of the Act were not complied with in this case. He also contends that it is overwhelmingly proved on the record of the case that the place where the alleged recovery was made was such where there could not be any dearth of independent witnesses and yet the police had not chosen to join any independent witness while effecting recovery from the appellant. He also contends that while making an offer to the appellant as envisaged under Section 50 on the Act, no independent witness was joined as also that no offer in writing was made to the appellant in this regard.

Mr. Masih, learned Assistant Advocate General, Punjab, has joined issues with Mr. Kataria on all the points referred to above. This court, after hearing learned counsel for the parties and going through the records of the case, is of the considered view that the appellant deserves to be acquitted primarily on the ground that even though independent witnesses were available at the time the appellant was searched and an offer was made to him to be searched in the presence of a Gazetted Officer or a Magistrate, no such witness was joined. The matter is not reintegra as it stands concluded in favour of the appellant by some judicial pronouncements. In Paul Osumba v. State of Haryana, 1990(2) RCR 631 , a Single Bench of this Court, while relying upon Division Bench judgment of Himachal Pradesh High Court in State of Himachal Pradesh v. Sudarshan Kumar, 1989(2) Ch. L.R., 240, held that " it was further observed that such offer should as far as practical be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to prove the association of such witnesses was not possible on the facts and circumstances of a particular case."

It may be mentioned here that in the present case, even though an offer was made to the appellant but independent witnesses were not joined nor any effort was made in that direction even though as referred to above, there was no dearth of witnesses available at the time and place where search was made. A Division Bench of this Court in Amrit Singh v. State of Haryana, 1990(2) RCR 525 held :

"The provisions of Section 50 of the Act are mandatory in terms and it also stands so settled by judicial precedents, one of which is provided by the judgment of this Court in Hakam Singh v. Union Territory, 1988(2) RCR 20 : 1988(2) Chandigarh Law Reporter 75. Reference may here also be made to the judgment of the Division Bench of the High Court of Himachal Pradesh in State of Himachal Pradesh v. Sudershan Kumar, 1989(2) Chandigarh Law Reporter 240, where it was held that the person about to be searched must be informed of his right, under Section 50 of the Act to be searched in the presence of a Magistrate or a Gazetted Officer. Violation of this provision, it was held, would per see be fatal to the prosecution case. Further, it was observed that such offer, should as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case."

To the same effect is the judgment of Single Bench of this Court in Har Narain v. State of Haryana, 1992(1) R.C.R. 133. Concededly, no independent witness was joined in this case and there is no even a word coming from the statements of PW1 and PW2 that were was any difficulty in joining independent witnesses or an effort was made but the persons contacted refused to become witnesses. The matter does not rest there as in yet another decision rendered by the Single Bench of this Court in Paramjit Singh v. State of Punjab, 1996(1) RCR 267 , it has been held that "an offer as envisaged in Section 50 of the Act should be in writing, failing which the accused is entitled to acquittal."

Mr. Masih, the learned AAG, Punjab, on the other hand, has cited some judgments, reference of which is not necessary as the same are with regard to search of an accused suspected of possessing contraband. The judgments referred to above are with regard to search and there too it has been held that the nonjoining of the independent witnesses would not be fatal if the circumstances do not permit joining of independent witness.

This Court is in complete agreement with the view expressed by Division Bench of this Court in Amrit Singh''s case (supra) and Single Bench decisions of this Court in Paul Osumba and Har Narain''s cases (supra) as also Paramjit Singh''s case (supra). It may be mentioned that mere possession of contraband of whatever quantity is punishable under the Act are for minimum of ten years imprisonment and fine of rupees one lac. Looking at the deterrent punishment that is provided for being in possession of any contraband, Legislature in its wisdom, has provided ample safeguards for the reasons that no one should be punished unless guilt against him is fully established beyond shadow of a reasonable doubt. The safeguards provided under the Act not only a formality and, in view of this Court, have to be meticulously adhered to. Non compliance thereof would result into rejection of the prosecution case by giving the accused benefit of doubt. Prosecution is naturally interested in success of its case and, therefore, there is requirement of joining independent witnesses. It will be unsafe to convict a citizen on the statement of police officers/officials in a case were independent witnesses are available and have not been joined and where no explanation, worth the name, is coming from the prosecution as to what prevented it from joining independent witnesses. Applying the standard of proof, as mentioned above, this Court finds no option but for to set aside the order passed by learned Additional Sessions Judge by setting aside the order of conviction and sentence.

Consequently, this appeal is allowed and the appellant is acquitted of the charge framed against him. Bail bonds furnished by him are discharged.