Pala Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed by Pala Singh, and has been directed against the judgment and order dated 23.7.1998 passed by the court of Addl. Sessions Judge, Faridkot, who convicted the appellant u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to undergo R.I. for two years.

The brief facts of the case are that on 4.8.1995, Inspector Baldev Singh along with ASI Amar Singh, Head constable Sham Sunder and a few other officials was proceeding on the common patri of two canals in an official Gypsy for search of accused Gora Singh, r/o Bholuwal, in case FIR No. 73 dated 27.7.1995, u/ss 302/201, IPC, registered in Police Station Sadar, Faridkot, and for the recovery of the dead body of the deceased. When the police party was a little short from the common bridge of the said two canals, in the area of village Phidde Kalan, the appellant was spotted coming from the side of village Phidde Kalan and at that time the appellant was carrying a plastic bag in hand and he was apprehended on the basis of suspicion. Inspector Baldev Singh told the appellant that he wanted to conduct the search of the bag and whether the appellant wanted to give the search in the presence of the gazetted officer or a Magistrate. The appellant, however, reposed confidence in the I.O. Consent memo, Es. PA, was recorded in this regard, which was thumb marked by the accused and attested by ASI Amar Singh and HC Sham Sunder. However, the I.O. requested Ashok Bath, DSP, Faridkot, through a wireless message to reach at the spot. Resultantly, the DSP came there and in the presence of the DSP and ASI Amar Singh, the I.O. took the search of the bag and found opium in it. On weighing it came to 2 kgs. The I.O. separated 20 grams of opium by way of sample and made a sealed parcel thereof. The remaining bulk of the opium was also separately sealed. Both the said parcels were sealed by the I.O. with his own seal bearing inscription `BS'', and taken into possession vide recovery memo, Ex. PB, which was attested by the DSP and ASI Amar Singh. The parcel containing opium is Ex. P1 and the bag is Ex. P 2. The specimen impression of the seal, Ex. P3, was also prepared. From the personal search of the appellant, currency worth Rs. 35/ was recovered which was also taken into possession vide recovery memo, Ex. PC. The grounds of arrest were supplied to the accused vide memo, Ex. PD. Accused could not produce any licence or permit for the possession of the opium. Resultantly, ruqa, Ex. PJ, was sent to the police station for the registration of the case, on the basis of which formal FIR, Ex. PJ/1, was recorded by ASI Joginder Singh. The I.O. prepared the rough site plan, Ex. PK, of the place of recovery and recorded the statements of the witnesses u/s 161, Cr.P.C. The I.O. retained the case property, sample and the specimen seal and on the next day he directed ASI Jagdish Lal to produce the accused along with the case property, sample and the specimen seal before the Illaqa Magistrate, vide his request, Ex. PE. As per the allegations of the prosecution, the case property remained intact so long it remained in the custody of the I.O. ASI Jagdish Lal received the case property on 5.8.1995 and produced it before the Area Magistrate who passed orders, Ex. PE/1. On return to the Police Station, the ASI deposited the entire case property with the MHC. Sample of the opium was sent to the office of the Chemical Examiner, who vide report, Ex. PL, declared the contents as opium.

On the completion of the investigation of the case, the appellant was challaned in the court of the Area Magistrate, who supplied the copies of the documents free of cost as required under the law and vide order dated 3.11.1995, committed the accused to the court of sessions.

Vide orders dated 1.12.1995, the appellant was chargesheeted on the allegations that on 4.8.1995 in the area of village Phidde Kalan, he was found in possession of 2 kgs. of opium without any licence or permit and thereby the committed an offence u/s 18 of the Act. The charge was read over and explained to the accused, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined ASI Amar Singh, PW1, ASI Jagdish Lal, PW2, HC Rajinder Pal, PW3, Constable Jasbir Singh, PW4, DSP Ashok Bath, PW5, Constable Angrez Singh, PW6 and I.O. Baldev Singh, PW7. The prosecution gave up HC Sham Sunder as unnecessary. Finally, the prosecution tendered into evidence the report of the Chemical Examiner, Ex. PL. and closed the case.

On the closure of the prosecution evidence, the statement of the accused was recorded under section 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the appellant. The appellant denied those circumstances and stated as follows :

"I am innocent. I was brought from the house of Gurtej Singh of village Dhudi prior to three days to the alleged recovery. Nothing was recovered from my possession. After my illegal detention, I was falsely implicated in this case."

When called upon to enter into defence the accused did not lead any evidence.

The learned trial Court, however, relied the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri Kuldip Singh, Advocate, on behalf of the appellant and Shri S.S. Randhawa, DAG, Punjab, appearing on behalf of the State, and with their assistance have gone through the record of this case.

The principal argument which was raised by the counsel for the appellant is that section 50 of the Act has not been complied with in this case in letter and spirit. The learned counsel for the appellant submitted that the I.O. was not honest, rather he was oversmart when he took the assistance of the DSP in order to cover the initial lapse which he had committed while recording the statement, Ex. PA. Elaborating his argument, the learned counsel for the appellant submitted that as per the statement, Ex. PA, the appellant allegedly reposed confidence in the I.O. In these circumstances, it was obligatory on the part of the I.O. to get attestation on the statement, Ex. PA, from some independent witness. He has not done so inspite of the fact that there was ample opportunity on the part of the I.O. to do so. In the absence of any attestation from an independent witness on Ex. PA, it can be safely concluded that the I.O. was not honest when he was allegedly complying with the provisions of section 50 of the Act.

On the contrary, the learned State counsel submitted that the I.O. was an honest officer and irrespective of the fact that the appellant reposed confidence in the I.O., still, the I.O. has taken the assistance of the DSP, who came at the spot and in whose presence the search of the bag was taken. The counsel for the State has also placed reliance upon the judgment of the Hon''ble Supreme Court in Raghbir Singh v. State of Haryana, 1999(1) RCR 573, and submitted that as per the ratio of this judgment, the I.O. had the right to call either a gazetted officer or a Magistrate and in the present case, the I.O. had taken the assistance of a gazetted officer by the name of Ashok Bath, belonging to the police department and, therefore, no prejudice has been caused to the appellant from whom a heavy recovery of 2 kgs. of opium has been recovered. The State counsel also submitted that the conviction can be based on the statements of the police officials as there is no discrepancy; material or minor, which has come in the statements of the police officials.

I do not subscribe to the argument raised by the learned State counsel. A reading of Ex. PA would show that this document is not attested by any independent witness. It is a common case of the parties that the present recovery has been effected from an open place. It was a public road. There was ample opportunity on the part of the I.O. to associate an independent witness before recording the statement, Ex. PA. If the I.O. was very sincere in showing the genuineness of the mode of his investigation, he should have taken the assistance of an Executive Magistrate, in whose presence the search could have been conducted. He has called the DSP of his own department. It has come in the statement of ASI Amar Singh, PW1, that the police party remained at the spot for about 3/4 hours. So much so, Constable Gurjit Singh was sent to bring weights and scales and he was specifically directed to call some respectable person from the village but nobody was brought by Constable Gurjit Singh so as to lend confidence in the mind of this Court about the genuineness of the recovery. The conduct of the I.O. appears to be a little bit under cloud when he preferred the DSP than an Executive Magistrate. The accused was not produced before an Executive Magistrate. Even after the DSP came at the spot, there was ample opportunity on the part of the I.O. and the DSP to associate some independent witness because a vehicle was available to the police party. ASI Amar Singh when crossexamined further to tell the names of the persons who were not ready to join the investigation, fumbled and stated that he could not tell from whom Constable Gurjit Singh brought the scales and weight and to whom he contacted. In these circumstances, it will be highly risky on the part of the law courts to base conviction on the testimony of police officials. The conduct of the police officials is not above board. I do not dispute the proposition of law as laid down by the Hon''ble Supreme Court in Raghbir Singh''s case nor I give challenge to the submission raised by the counsel for the State that conviction can be based on the testimony of the police officials but every case has to depend upon its own facts.

This court has earlier in similar circumstances in Crl. Appeal 158SB of 1999 (Kewal Krishan v. The State of Punjab) held that section 50 has to be properly complied with. This section has been incorporated in the Act for the benefit of the accused and the person who was going to be searched by the I.O.

In the light of my above discussion, I am inclined to hold that section 50 of the Act has not been complied with in this case and a reasonable doubt has crept in the file and the benefit of such doubt has to go to the appellant. This aspect of the case has not been considered at all by the learned trial court while passing the impugned judgment and order.

Resultantly, I accept this appeal, set aside the judgment and order of the trial court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to the rules. The information regarding the acceptance of this appeal be sent to the Superintendent, Central Jail, Faridkot, so that the appellant should be set at large forthwith, if not required in any other case.