Pal Singh vs State of Haryana

R.L. Anand, J.

Two appellants namely Pal Singh and Rajinder Singh have filed the present criminal appeal and it has been directed against the judgment dated 3.2.1999 and order dated 4.2.1999 passed by the court of Additional Sessions Judge, Bhiwani who convicted both the appellants under Section 15 of the N.D.P.S. Act and sentenced each one of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lakh. In default of payment of fine each one of them was directed to undergo rigorous imprisonment for a period of two years.

The brief facts of the case are that on 1.10.1997, Assistant Sub Inspector Raj Pal alongwith Head Constable Ram Kishan, Constable Inderpal, Jaipal and Ram Chander was present at Jhumpa chowk in connection with nakabandi. At about 7.15 P.M., from the side of Rajgarh, one tractortrolley without number came there. Accused Pal Singh was driving the said tractor and accused Rajinder Singh was sitting on the tractor. The said tractor was stopped and checked. It was containing 6 bags. Raj Pal Assistant SubInspector suspected poppy husk in the said gunny bags. A joint notice under section 50 of the N.D.P.S. Act was given to the accused to the effect that he suspected some narcotic in the gunny bags in the troller and if the accused so wish, then their search can be taken in the presence of a Gazetted Officer or a Magistrate. The accused opted to give their search in the presence of Gazetted Officer. Notice Ex.PF was thumb marked by both the accused, attested by Head Constable Ram Kishan and Constable Inderpal. Similarly reply Ex.PF/1 was thumb marked by both the accused, attested by Head Constable Ram Kishan and Constable Inderpal. Through wireless message Shri Vijay Kumar D.S.P. Siwani was summoned on the spot. Resultantly, D.S.P. reached at the spot and in his presence search of the gunny bags was taken and each bag was found to contain 40 kilograms of poppy husk. The thanedar separated 200 grams of poppy husk by way of sample and sealed it with his own seal. Remaining poppy husk was separately sealed. D.S.P. Vijay Singh also resealed the samples and the case property with his seal bearing inscription VS. The seal after use was handed over to Constable Ram Kishan. However, the D.S.P. retained the seal with him. Accused could not produce any permit or licence for the possession of the same. Resultantly, ruqa Ex.PD was sent to the Police Station on the basis of which formal F.I.R. Ex.PD/1 was recorded. Samples of the poppy husk were sent to the office of the Chemical Examiner who declared the contents as of poppy husk. On completion of the investigation of the case, accused was challaned in the court of Area Magistrate under section 15 of the N.D.P.S. Act who committed the accused to court of Sessions vide orders dated 3.1.1998. Accused was chargesheeted under section 15 of the N.D.P.S. Act vide order dated 4.2.1996. The charge was read over and explained to the accused to which he pleaded not guilty and claimed a trial.

In order to prove its charge, prosecution examined Head Constable Madan Lal as PW.1, Constable Laxman Dass as PW.2, ASI Raghbir Singh as PW.3, Sub Inspector Ram Avtar as PW.5 and ASI Raj Pal as PW.6. Prosecution also tendered in evidence report of the Forensic Science Laboratory and closed the case.

Statement of the accused was recorded and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated that nothing was recovered from them or tractortrolley. They had come to Siwani for hiring labourer for agricultural purposes. In Siwani Police had demanded `begar'' from them. When they refused, they were illegality retained by the police and when they threatened the police officials for making complaint against the illegal detention to the higher authorities, this false recovery has been planted upon them.

In defence, accused did not examine any witness and closed the case.

Learned Trial Court by believing the story of the prosecution and rejecting the defence version, convicted and sentenced the appellant in the manner stated above and aggrieved by their conviction and appeal, the present appeal.

I have heard Shri Gorakh Nath, Advocate appearing on behalf of the appellants and Shri J.S. Ahlawat, A.A.G. Haryana on behalf of the State and with their assistance have gone through the record of this case.

The submission which was raised by Shri Gorakh Nath, learned counsel appearing on behalf of the appellant is that in this case joint statement has been given to the appellants under Section 50 of the N.D.P.S. Act. So much so, their joint statement has been recorded under Section 50 of the N.D.P.S. Act which is not permissible under law. In support of his contention, learned counsel appearing on behalf of the appellant has drawn my attention to the notice Ex.PF and the joint statement Ex.PF/1 which was recorded by the Investigating Officer. There is merit in the contention raised by the learned counsel for the appellant. It has been held in 1998(2) RCR 384, Jaswant Singh v. State of Haryana that seizure of poppy husk has been effected from two persons. Offer of search before Gazetted Officer or Magistrate was given to them jointly and not individually, such an offer is not valid under section 50 of the Act. Hon''ble Lordship further held that offer must be given to each accused individually. In 1997(1) RCR 293, Paramjit Singh v. State of Punjab, another Bench of this Court held that option to be searched before Gazetted Officer or Magistrate has to be given to each accused individually and not jointly. Assuming for the sake of arguments that the Investigating Officer could give joint notice to each of the appellants as to whether they wanted to give search in the presence of a Gazetted Officer or Magistrate, is taken as legal still in view of this court statement of the accused must be recorded separately. Each one of the accused has his own right to say that he wanted to give search in the presence of a Gazetted Officer or Magistrate. In the present case, Investigating Officer has committed a patent illegality when he recorded joint reply Ex.PF/1 of both the appellants. It has been held by this Court in 1999(2) RCR 449, Neema Ram v. State of Punjab that joint statement of the accused is not permissible and Section 50 in such circumstances will not be deemed to have been complied with. The Court held that it cannot be believed that all the accused unanimously and with one voice and at the same time will make statement before the Investigating Officer that they wanted to give search in the presence of a Gazetted Officer. Resultantly, I hold that joint consent statement Ex.PF/1 is not legally valid. As a result, I allow this appeal and acquit the appellants of the charges framed again them. The poppy husk stands confiscated to the State and shall be destroyed according to law. The vehicle be returned to the rightful owner against receipt.