Mohinder Singh vs State of Haryana

V.S. Aggarwal, J.

This appeal is filed by Mohinder Singh appellant directed against the judgment and the order of sentence passed by the leaned Additional Sessions Judge, Ambala dated 16.9.1995. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act''). The appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac. In default of payment of fine, he was to undergo further rigorous imprisonment for two years.

The incident pertains to 8.10.1993. It is alleged that SI Ram Singh was present at Doorbin Chowk, Ambala Cantonment in connection with patrolling and crime checking. He was accompanied by UCG Ram Phal and Constable Tej Veer. At about 6.00 p.m. the appellant was seen coming from the side of Railway Station. He was having a card board carton on his head. On seeing the police party, he returned back and started walking briskly. It aroused the suspicion to SI Ram Singh. The appellant was stopped. He was told that if he likes his person can be searched before a Gazetted Officer or a Magistrate. A notice in this regard was served to the appellant. The appellant did not accept the offer and expressed full faith in SI Ram Singh. His consent was recorded in writing.

Thereupon the card board carton was searched. It was found to contain poppy husk. The contents were weighed and found to be 81/2 kilogram. 500 grams was taken as the sample. The sample and rest of the poppy husk were converted into two separate parcels and sealed with the seal of ''SK''. Both the parcels were taken into possession vide a recovery memo, duly attested by the witnesses. The seal after use was entrusted to UCG Ram Phal.

Ruqa was sent to the police station, on the basis of which formal First Information Report was recorded by ASI Dharam Pal. Rough site plan was prepared and the appellant arrested. While the appellant was being brought to the police station. Inspector Banwari Lal met them on the way. The appellant was produced before him alongwith the recovered poppy husk. He verified the facts and affixed the seal of ''BL'' on both the parcels. The case property was deposited with the Malkhana Moharrir. Subsequently, the representative sample was sent for chemical analysis. It was reported that contents were poppy husk. On these broad facts, challan as against the appellant was presented in Court.

The learned trial court framed a charge against the appellant for the offence punishable under Section 15 of the Act to which the pleaded not guilty and claimed a trial. During the course of trial, the prosecution examined six witnesses which included Inspector Ram Singh PW3 and UCG Ram Pal PW6. They are the two witnesses pertaining to the recovery of poppy husk from the person of the appellant and other corelated proceedings at the spot. The statement of the appellant was recorded and evidence of the prosecution was put to him in the form of diffenent questions. He denied recovery of poppy husk from his person and contended that he has falsely been implicated. Nothing was stated to have been recovered from his person.

The learned trial Court on appraisal of evidence held that provisions of Section 50 of the Act had been complied with. The argument that it was a partial offer given to the appellant, was rejected keeping in view that in the written notice given to the appellant complete option contemplated under subsection (1) of Section 50 of the Act had been given. It was held that prosecution has successfully proved recovery of poppy husk from the person of the appellant and with these basic findings, the impugned judgment and the order of sentence were passed. Aggrieved by the same, the present appeal has been filed.

Both Inspector Ram Singh PW3 and UCG Ram Pal PW6 in their testimonies before the learned trial Court stated that when the appellant was stopped on suspicion, an option was given to him that if the likes his person can be searched before a Gazetted Officer. The said offer was not accepted. Keeping in view the said statement, it was argued that this was a partial option because in terms of subsection (1) of Section 50 of the Act, once the suspicion had arisen, the option should have been given that if the appellant likes his person can be searched before a Gazetted Officer or a Magistrate. The word Magistrate was omitted and consequently there was noncompliance of the provisions of Section 50 of the Act. However, the attention of the Court was being drawn to the notice Ex. PB to state that in the said notice, complete option in terms of subsection (1) of Section 50 of the Act had been given and the appellant was told in writing that if he likes his person can be searched before a Gazetted Officer or a Magistrate.

In the present case in hand though it is claimed that notice Ex. PB was given to the appellant and he signed the same, still authenticity of the same is doubtful. Ram Pal PW6 made a statement during cross examination that when the accused was asked about his option, the carton was on his head. Even at the time of signing Ex. PB and Ex. PB/1, the carton was on his head. In terms of the statement of Ram Pal PW 6, it is difficult to believe that the appellant could sign with carton on his head. Inspector Ram Singh also was crossexamined in that direction. He also stated that the appellant kept the carton on his head all the time but wiser after his statement, he added on further probing that appellant had taken the carton off his head when his statement was recorded. In this regard the fact as to if such a notice was given to the appellant looks suspicious. Once such a suspicion arises, it leads one to conclude the it is not established that the offer was given in writing to the appellant. In that event the prosecution cannot rely on Ex. PB the alleged notice. The evidence in the Court on the contrary is that option was only given to the appellant that if he likes his person can be searched before a Gazetted Officer. No option was given with respect to the right of the appellant to be taken before a Magistrate. Since it was a partial option, it cannot be held to be valid and the same would affect the recovery to have been made in accordance with law.

In addition to that the evidence of the prosecution was criticised because no public witness had been joined. Inspector Ram Singh appeared as PW3 and admitted that there were rickshaw pullers and public persons available. He tried to join them but they refused. The statement of Ram Pal PW6 was by and large on similar terms. He stated that appellant was apprehended near the place where rickshaws and push carts are parked. Some public persons were called to join but they declined.

The Courts insist on joining the public witnesses to lend authenticity and credibility to the search. If public witnesses are available then they should be joined. If no public witness is joined, then reasonable explanation should be forthcoming. It has vaguely been stated that people were present but refused to join. In the facts of the present appeal it is difficult to believe that in such a crowded place they were not able to get the services of even a single person. It affects adversely on the prosecution case. This casts grave shadow of doubt about the prosecution version. Thus, the appellant is entitled to the benefit of doubt.

For these reasons, the appeal is accepted. The judgment and the order of sentence passed by the trial Court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released forthwith if not required in any other case.