Nimma Ram vs State of Punjab

R.L. Anand, J. (Oral)

By this judgment I dispose of two criminal appeals, Nos. 870SB of 1998 and 1067SB of 1998, titled Nimma Ram and others v. State of Punjab. I may clarify that both these appeals have arisen from one judgment but have been filed by separate lawyers under some misconception as the appellant engaged two separate lawyers at different points of time in order to file their appeals.

These appeals are directed against the judgment and order dated 27.8.1998 passed by the court of Special Judge, Ropar, who convicted appellants Nimma Ram, Tilak Ram and Satnam Singh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to `the Act'') and sentenced each one of them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, each one of the appellants was directed to further undergo rigorous imprisonment for two years.

The brief facts of the case are that on 22.5.1997 Surjit Singh, SHO, Police Station Kurali received secret information that three persons in the area of village Padiala namely Satnam, Nimma and Tilak Raj were looking for transport to carry eight bags of poppy husk. Inspector Surjit Singh recorded F.I.R. and the police party consisting of Surjit Singh, SHO, ASI Kulbir Singh, ASI Karnail Singh, HC Kuldip Singh and other police officials including independent witness Yash Pal headed for the disclosed place. On reaching T point in the revenue estate of village Padiala on main KuraliKharar road, all the accused were seen present along with eight bags. On seeing the police party they tried to slip away. On the basis of suspision, accused along with the gunny bags were apprehended. Inspector Surjit Singh told the accused that he wanted to search the gunny bags and whether the latter wanted to be searched in the presence of a Magistrate or a Gazetted Police Officer. The accused stated that the wanted to be searched in the presence of a Gazetted Officer of the police department. Consent memo Ex. PD to this regard was prepared which was signed by the accused and attested by ASI Kulbir Singh, ASI Karnail Singh and independent witness Yash Pal. Accordingly, a wireless message was flashed and Ashwani Kapoor, DSP, Kharar was summoned to the spot. On reaching the spot, the DSP disclosed his identity and further offered whether the accused wanted to be searched in his presence. On approval of the accused, the Investigating Officer conducted search of the gunny bags in the presence of DSP and it was found that the gunny bags were containing poppy husk. A sample of 250 grams each was taken out from all the eight bags. On weighment the remaining poppy husk in each bag was found to be 34 kgs. 750 grams. The remaining poppy husk was put back into the same bags and was prepared in the form of parcels. The parcels and samples were sealed with the seal of the Investigating Officer and that of DSP bearing impressions `SS'' and `AK'' respectively. The seal of the Investigating Officer was handed over to ASI Karnail Singh after its use, whereas the DSP kept his seal with him. The entire case property was taken into possession vide memo Ex. PB which was attested by DSP Ashwani Kapoor, ASI Kulbir Singh and independent witness Yash Pal. On supplementary search, currency notes of Rs. 80/, Rs. 65/ and Rs. 52/ were recovered from accused Satnam Singh, Nimma Ram and Tilak Raj respectively, which were taken into possession vide memos Ex. PE, PF and PG. Rough site plan of the place of recovery Ex. PH was prepared and statements of the witnesses were recorded. On reaching police station, the case property was deposited with the MHC Bawa Singh. Samples and sample seals were also deposited with him. On 23.5.1997, the case property along with the accused was produced before Illaqa Magistrate by ASI Kulbir Singh and on return to the police station, the same was deposited with the MHC.

The samples of the poppy husk were sent to the office of Chemical Examiner, who vide his report Ex. PK declared the contents as poppy heads and on completion of investigation, the accused were challaned under Section 15 of the Act in the court in Illaqa Magistrate, who supplied the copies of the documents to the accused and vide commitment order dated 1.8.1997 committed the accused to the Court of Session in order to face the trial.

Vide orders dated 14.8.1997 all the three accused were charge sheeted under Section 15 of the Act on the allegations that on 22.5.1997 in the area of village Padiala they were found in possession of 280 kgs. of poppy husk without any licence or permit and thereby committed the offence punishable under Section 15 of the Act. The charge was read over and explained to the accused to which they pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution tendered into evidence affidavit Ex. PA of Constable Prabjot Singh, who appeared as PW1. Constable Manjit Singh appeared as PW2 and stated that on 22.5.1997 Inspector Surjit Singh entrusted to him the special reports for delivering the same to the Illaqa Magistrate and SSP, Ropar. He accordingly delivered the same to the Illaqa Magistrate first and then to S.S.P., Ropar, DSP Ashwani Kumar appeared as PW3 and Inspector Surjit Singh, the Investigating Officer, appeared as PW4. HC Bawa Singh appeared as PW5 and ASI Karnail Singh appeared as PW6. ASI Kulbir Singh gave his statement by appearing as PW7. PW Yash Pal was given up by the prosecution as having been won over by the accused. Finally, the prosecution tendered into evidence the report Ex. PK of the Chemical Examiner and closed the case.

Statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. They denied those circumstances and stated that they have been falsely implicated in this case.

In defence the accused did not lead any evidence and closed the case.

The trial Court relied the story of prosecution and rejected the defence version, convicted and sentenced the appellants in the manner as stated above and aggrieved by their conviction and sentence, the present appeal.

I have heard Mr. R.S. Ghumman, Advocate on behalf of the appellants, Mr. Vikas Cuccuria, AAG on behalf of the State and with their assistance I have also gone through the records of this case.

The frontal argument which was raised by the learned Counsel for the appellants in this case is that the socalled compliance of Section 50 of the Act is not in accordance with the Act. The counsel submitted that the record of the trial Court would show that a joint consent statement under Section 50 of the appellants had been recorded by the Investigating Officer and this mode is not permissible according to law. He further submitted that the mandate of law is that the offer of section 50 should be given to each individual accused and joint offer is no offer in the eyes of law. In support of his contention, the learned Counsel for the appellants relies upon Paramjit Singh v. State of Punjab, 1997(1) Recent C.R. 293 . In para No. 9 of the judgment the Hon''ble Lordship was pleased to hold as follows :

"Not only no independent witness was present but it is difficult to believe that offer was given jointly and the answer also given in a similar manner. Necessarily, the offer must be given to each of the accused individually that if he likes the services of a Gazetted Officer or a Magistrate can be procured. It has not been done. It makes one conclude that the said assertion of the prosecution was makebelief rather than genuine. It is, therefore, difficult to hold that there was compliance of the provisions of subsection (1) of Section 50 of the Act."

Let us see what evidence has been led by the prosecution in the present case. The consent statement is Ex. PD on the record. A reading of the same would show that it is a joint consent statement made by Nimma Ram, Tilak Raj and Satnam Singh. It is not believable that all the three appellants unanimously and with one voice and at the same time will make the statement before the Investigating Officer that they (would) like to give the search in the presence of a Gazetted Police Officer. The Investigating Officer, Inspector Surjit Singh appeared as PW4 in this case and his substantive statement is as follows :

"I then stated to the accused that I had suspicion that they were having poppy husk in the gunny bags and that their search was to be conducted. I further apprised the accused of their legal right to offer their search before a Magistrate or a Gazetted Police Officer, or myself. The accused stated that they would offer their search before a Police Gazetted Officer. Accordingly consent memo was prepared which is Ex. PD, which was signed by the accused and attested by ASI Kulbir Singh, ASI Karnail Singh and Yash Pal."

Thus the above would conclusively establish that a joint consent statement was recorded by the Investigating Officer which is not permissible according to law. In this case the compliance of Section 50 was mandatory because the police had received a secret information against the appellants that they were in possession of the poppy husk. Once it is established that Section 50 in this case has not been complied with according to law, the search and seizure of the contraband would become illegal in view of the settled proposition of law as given by the Hon''ble Supreme Court in the famous case of State of Punjab v. Balbir Singh, 1994(1) Recent C.R. 736.

In the light of above, I allow these appeals, set aside the judgment and order of the trial Court and acquit the appellants of the charge framed against them.

The case property stands confiscated to the State of Punjab and shall be destroyed according to rules.

Let the intimation about the acceptance of these appeals be sent to the Superintendent, District Jail, Ludhiana so that the appellants may be set at liberty forthwith, if not wanted or convicted in my other case.

Appeals allowed.