Papu vs State of Punjab

K.S. Kumaran, J.

AppellantPappu faced trial before the Additional Sessions Judge, Ferozepur under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and was accordingly convicted and sentenced to undergo rigorous imprisonment for 10 years, to pay a fine of Rs. 1 lakh and in default, to further undergo R.I. for 2 years. Aggrieved, he has preferred this appeal.

The case of the prosecution is as follows :

On 24.11.1985, while ASIMoti Ram alongwith Head ConstableTilak Raj (PW1) and ConstableBaljit Singh was on patrol duty and was near the byepass, appellantaccusedPappu on seeing the police party, descended into the depression on his right side. He was apprehended, searched and was found to be carrying 4 kilograms of opium in a bag. After separating the sample and sealing it, the sample, the remainder and the bag were taken into possession, and intimation was sent to the police. On receipt of the report of the Chemical Examiner, the chargesheet was presented into the Court of Judicial Magistrate Ist Class, Fazilka, who committed the case to the Court of Sessions, where a charge under section 18 of the N.D.P.S. Act was framed against the accusedappellant.

In support of its case, the prosecution examined H.C. Tilak Raj (PW1) who deposed on the lines of the prosecution case. According to him, the accused was seen entering the main road from the right side and he, on seeing the police party, descended into the depression on his right side. He also deposed that ASI Moti Ram after offering him for search, searched the accused and 4 kilograms of opium wrapped in glaze paper was found in the bag which the accused was carrying in his right hand. According to PW1, 10 grams of opium was separated as sample. The sample and the remainder were parceled and sealed with the seal of ASI Moti Ram, taken into possession along with bag under memo Ex.PA attested by him and Constable Baljit Singh. Resham SinghA.M.H.C. tendered his affidavit (Ex.PC) to show that the case property and the sample were deposited with him on 24.11.1985 and that he handed over the sample to Constable Ram Lubhaya on 4.12.1995 for the purpose of taking it to the Chemical Examiner. ASI Moti Ram (PW3) also deposed on the lines of the prosecution case. The affidavit of Constable Ram Lubhaya (Ex.PF) and the report of the Chemical Examiner were also tendered into evidence. When questioned under Section 313 Cr.P.C., the accused denied the prosecution case and pleaded false implication.

The learned Additional Sessions Judge, after taking into consideration the materials placed before him, held that the case of the prosecution cannot be suspected on the ground that no independent witness had been associated, and that the prosecution had proved its case against the accused beyond any reasonable doubt. He accordingly convicted and sentenced the accused as mentioned above.

I have heard the counsel for both the sides and perused the records.

The learned counsel for the appellant first of all contended that the whole of the investigation is vitiated inasmuch as the same was carried on under the Opium Act, in spite of the fact that on 24.11.1985, when the offence was allegedly committed by the appellant, Opium Act had been repealed and the N.D.P.S. Act had come into force. He contended that the provisions of Sections 50 and 55 of the N.D.P.S Act had not been complied with. According to him, the evidence of the prosecution does not show that any offer was made to the accused that, if he so wanted, his search would be conducted in the presence of a Magistrate or a Gazetted Officer, and this omission affected the prosecution case.

The contention of the learned counsel for the appellant that the entire investigation and the prosecution is vitiated is well taken. The N.D.P.S. Act came into force on 14.11.1985. The alleged occurrence in this case took place for 24.11.1985, i.e., after coming into force of the N.D.P.S. Act 1985. But, I find that the F.I.R. it has been registered under Sections 9/1/78 of the Opium Act. The chargesheet also was presented before the Judicial Magistrate Ist Class, Fazilka, and he after the perusal of the records and hearing the learned Additional Public Prosecutor and the counsel for the accused concluded that prima facie an offence punishable under Section 18 of the N.D.P.S. Act was made out, which is exclusively triable by the Court of Session and, therefore, committed the case to the Court of Session, directing that the accused be also produced before the Sessions Judge, Ferozepur. Therefore, it is clear that though on the day of the alleged occurrence the N.D.P.S Act had came into force, the investigation had not been carried on under that Act, but only under the Opium Act.

The learned counsel for the appellant relied upon the decision of this Court in Pritam Singh v. State of Haryana, 1997(4) R.C.R. 219 which clearly goes to support the contention of the appellant that the investigation done under the Opium Act vitiates the investigation. The following observations of the Court in this decision are very relevant :

"NDPS Act, 1985 came in force on 14.11.1985. According to the prosecution, this recovery took place on 16.3.1986. This case ought to have been investigated as if it were a case under the NDPS Act, 1985. This case ought not to have been investigated as if it were a case under the opium Act. Prior to 14.11.1985, recovery of contraband opium was an offence under the Opium Act triable by Judicial Magistrate of the Ist Class. On or after 14.11.1985, recovery of contraband opium became an offence under Section 18 of the NDPS Act, 1985, triable by a special court who shall be Sessions Judge or Additional Sessions Judge. There was, thus a different forum for trial so far as offence under Section 9 of the Opium Act was concerned. There is a different forum for trial created by the NDPS Act, 1985 so far as the offence under this Act is concerned, where the possession of contraband opium was punishable with three years imprisonment and fine under the Opium Act. Possession of contraband opium is an of offence punishable with 10 years imprisonment and fine of Rs. 1 lac in the minimum under Section 18 of the NDPS Act.

In the Opium Act, there were no special safeguards provided to the accused whereas some special safeguards have been provided to the accused under NDPS Act which are intended to obviate false implication. Section 50 of the Act is mandatory and it enumerates the conditions under which search of persons shall be conducted.

In this case, the investigating officer did not advert to the provisions of Sections 50, 52, 55 and 57 of this Act at all. In fact, he did not advert to any of the provision of this Act at all. It would bear repetition that he investigated the case as if it were a case under the Opium Act."

Ultimately this Court acquitted the accused allowing the appeal.

The decision in Swarna v. State of Punjab, 1987(2) R.C.R. 117 is also to the same effect and this Court taking into consideration the fact that the case was originally registered under Section 9 of the Opium Act and the non examination of any independent witness held that the prosecution has not been able to prove the case beyond reasonable doubt and also observed as follows :

"Another significant feature of the case here, is that it was originally registered as one under Section 9 of the Opium Act. It would appear that on this account none of the other safeguards prescribed by the mandatory provisions of the Narcotic Drugs & Psychotropic Substances Act, 1985 were taken note of and complied with during the investigation of the case."

A Division Bench of this Court in State of Punjab v. Sewa Singh, 1992(3) R.C.R. 359 held as follows :

"Admittedly, the opium in question was recovered from the possession of the accused on January 20, 1986 when Narcotic Drugs and Psychotropic Substances Act, 1985 had already come into operation, repealing the Opium Act, 1978. It is not disputed by the State counsel that he Investigating Officer was to investigate under the provisions of NDPS Act 1985. Apparently, in view of this lach on the part of the Investigating Officer, the entire investigation is bad in law........."

In the case on hand the evidence of Head Constable Tilak Raj (PW1) is that Constable Baljit Singh was sent for bringing the independent witness but he could not find any independent witness. In crossexamination Head Constable Tilak Raj (PW1) admitted that the place of recovery is more than 1 k.m. from the abadi and that many people met them on the way. According to P.W.1 on 24.11.1985 he along with ASI Moti Ram (PW3) and constable Baljit Singh went on a patrolling duty. Therefore, when these police officials had gone on patrolling duty to detect crimes, they should have associated an independent witness. Admission of PW1 shows that many people met these police officials on their way but none was associated with the investigation. Therefore, the mere statement that Baljit Singh could not find any independent witness is not enough. The nonassociation of an independent witness who could have been associated in the investigation, also goes against the prosecution. This apart though, the affidavit of Head Constable Rasham Singh (PW2) was produced as Ex.P.C. to show that on 24.11.1985 A.S.I. Moti Ram (PW3) had deposited the case property with him, the said Resham Singh had not stated in his statement under Section 161 (Ex.DA) that the case property was deposited with him on 24.11.1985. He has only stated that A.S.I. Moti Ram deposited the case property with him. Section 52 of N.D.P.S. Act provides that any article seized under Sections 41 to 43 will have to be forwarded to the Magistrate who had issued or the officer incharge of the nearest police station as the case may be, without unnecessary delay. Further, I find from the affidavit of Constable Ram Lubhaya (Ex.PF) that the case property was handed over to him only on 4.12.1985 by Resham Singh for being delivered to the office of the Chemical Examiner. Therefore, there is delay in sending the case property to the Chemical Analysis Laboratory also.

Therefore, I find in this case that apart from the nonassociation of an independent witness, there is also doubt as to the date on which the case property was produced by PW3 to the Officer Incharge of the Police Station, and there is also delay in sending the case property to the Chemical Examiner. Though these factors by themselves may not vitiate the investigation and prosecution, these factors can be taken into account while appreciating the evidence against the accused. I also find that the investigation has been carried on only under the Opium Act despite the fact that the N.D.P.S. Act had come into force on the date of the alleged occurrence.

The learned counsel for the State also does not dispute that whatever was done by the police officials they have been done under the Opium Act, and that the investigation has been carried on under the Opium Act. If we take into consideration this fact along with other circumstances viz. the non association of any independent witness at the time of the alleged arrest and seizure of the contraband, the doubt as to when the contraband allegedly seized from the accused was sent to the officer in charge of the police station, the unexplained delay in sending the contraband for chemical analysis then, it is clear that the accused is entitled to the benefit of doubt.

In view of the discussion made above, I am of the view that the conviction of the accused and the sentence passed against him cannot be sustained.

In the result, the appeal is allowed setting aside the conviction of and the sentence passed against the accused/appellant. The accused/appellant is acquitted and is ordered to be released.

Fine, if paid, will be refunded to the accused/appellant.

Appeal allowed