Makhan Ram vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Makhan Ram (hereinafter described as ''Appellant'') directed against the judgment and order of sentence passed by Shri D.S. Chatha, Additional Sessions Judge, Jalandhar dated 12.7.1993. The learned Additional Sessions Judge held the appellant guilty of the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''Act'') and sentenced the appellant to rigorous imprisonment for 10 years and a fine of Rs. One lac. In default of payment of fine, appellant was to undergo further rigorous imprisonment for one year.

The sum and substance of the prosecution case in brief is that on 4.5.1990, Assistant SubInspector Sikkatar Singh accompanied by Head Constable Surinder Kumar and some other officials were present near Bus Stand Nurmahal. They were patrolling the area and investigating the case FIR No. 177/89, Police Station, Phillaur. The appellant was seen coming from the side of Railway Line Phillaur. On seeing the Police Party, the appellant tried to avoid them. Kulbir Singh, a public witness also came there. He was joined in the police party.

The appellant was stopped on suspicion. He was interrogated. He made a disclosure statement that he had kept concealed 7 bags of poppy husk in a heap of straw inside his residential house and can get the same recovered. His disclosure statement was reduced into writing and attested by Head Constable, Surinder Kumar besides Kulbir Singh, the public witness. The appellant spurned the offer that a Gazetted Officer may well be joined before the recovery.

In pursuance of the disclosure statement, he led the police party to his residential house and got recovered 7 bags of poppy husk. Each was weighed and found to be of 45 kilograms. 250 gms. was taken from each bag as sample. The sample and the rest of the bags were converted into parcels and sealed with the seal of SS. All these packets were taken into possession vide a recovery memo. The seal after use was given to Head Constable Surinder Kumar. Formal F.I.R. was got registered. The sealed parcels and the accused were produced before the Sub Inspector, Kamaljit Singh, Officer Incharge of the Police Station, Phillaur. After satisfying himself about the contents of the bags, he affixed his seal of K.S. on the samples and the bags. All these articles were deposited in the Malkhana. Head Constable Santokh Singh was the Malkahana Moharrir. Subsequently the samples were sent to Chemical Examiner. The report was received that they are poppy heads. This led to the submission of the case in Court.

The learned Additional Sessions Judge relied upon the testimony of the two official witnesses and concluded that it has successfully been proved that the poppy husk were recovered from the conscious possession of the appellant and held the appellant guilty of the offence, punishable under section 15 of the Act. It was followed by the order of sentence already mentioned above.

Aggrieved by the judgment and order of sentence the present appeal has been filed.

The case of the prosecution rests on the statements of two witnesses namely Head Constable Surinder Kumar P.W. 1 and A.S.I. Sikkatar Singh, P.W.2, Kulbir Singh was the solitary public witness. On 7.7.1993, the learned Additional Public Prosecutor did not produce Kulbir Singh as having been won over by the appellant and closed the prosecution evidence. In these circumstances, necessarily one has to appreciate the testimonies of two official witnesses mentioned above.

Needless to say both the official witnesses supported the prosecution case pertaining to the disclosure statement and in pursuance thereto the recovery of 7 bags of poppy husks at the instance of the appellant. Their testimonies were subject matter of criticism on the ground that no witness of the locality has been joined before effecting the search. There is no controversy with the proposition of law that statement of witness cannot be rejected simply on the ground that he is the government official or the police officer. Each case has to be examined on its own facts.

In the facts of the present case, as mentioned above and rementioned at the risk of repetition, the solitary public witness cited by the prosecution has not been produced. Strangely enough, no attempt was further made to join the public witness from near the house of the appellant in his village. It is not pointed out that public witnesses from the village were called or that they refused to join the police party. It transpires in the statement of ASI Sikkatar Singh that seal after use was given to Head Constable Surinder Kumar. It is anybody''s guess as to why it was not given to Kulbir Singh the public witness. When viewed in this background, it is difficult to act on the testimonies of these official witnesses and belief that it has been established to the effect that appellant was in conscious possession of the poppy husk alleged to have been recovered. The case of the prosecution in this regard, therefore, can hardly be taken to have been established beyond all reasonable doubts.

While enacting this Act of 1985, stringent punishment has been prescribed. This has been so done by the legislature to curb the menace of sale and possession of Narcotic Drugs and Psychotropic Substances. At the same time the safeguards have been provided and one such safeguard is strict provisions of Section 55 of the Act. It reads as under :

"55. Police to take charge of articles seized and delivered

An officerincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station."

A glance at the provisions reproduced above, show that duty has been cast on the officerincharge of the police station to take charge of the property and to keep it in safe custody. This has been so done to ensure that there is no tampering with the property and the same remains in custody of Senior Police Officer. He has to affix his seal on the said property and if necessary allow a sample to be taken. The provisions are mandatory.

The prosecution wanted the Court to believe that these strict provisions of Section 55 of the Act were complied with. But it has to be remembered that the officer incharge of the Police Station has important function in face of Section 55 of the Act. He has not been examined as a witness, even his affidavit has not filed. It is not the assertion or case of the prosecution that he is not available. It cannot be held that provisions of Section 55 of the Act in the absence of better evidence has been complied with.

The cumulative effect of these facts is that it must follow that the prosecution had failed to prove its case beyond all reasonable doubts. The appellant is entitled to the benefit of doubt.

As a result of the reasons recorded above, I accept this appeal and set aside the judgment and order of sentence passed by the trial Court. The appellant be set at liberty if not required in any other case.