Paramjit Singh vs State of Punjab

Sat Pal, J.

This appeal is directed against the judgment dated 2nd February, 1995, passed by the Additional Sessions Judge, Amritsar, in the case FIR No. 37, dated 22nd April, 1992, Registered at P.S. Goindwal Sahib under Section 15 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (in short, the Act). Vide this judgment, the learned Additional Sessions Judge, Amritsar, convicted both the appellants under Section 15 of the Act and sentenced each one of them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac and in default of payment of fine, each one of them to undergo rigorous imprisonment for two years.

As per the prosecution story, on 22nd April, 1992 SHO of Police Station Goindwal Sahib along with certain other Police Officials was present on the minor canal bridge at Chak Mehir in connection with patrolling and detection of bad elements, and at that time, the appellants were seen coming from the apposite side having gunny bags on their heads. It is further alleged that on seeing the Police Party, the appellant, Ranjit Singh, threw away the gunny bag and succeeded in running away but appellant Paramjit Singh was apprehended at the spot. Appellant Ranjit Singh was, however, known to the SHO and two other members of the party, and as such, he was identified. It is further alleged that the appellant Paramjit Singh was informed by the said SHO about his right to get the search conducted in the presence of a Gazetted Officer or Magistrate but Paramjit Singh reposed confidence in the SHO who conducted the search and 15 Kgs. of poppy husk was recovered from the gunny bag which he was carrying on his head. It is further alleged that 250 grams of poppy husk was taken out as sample from the recovered poppy husk and two parcels, namely one of the sample and other of the remaining poppy husk Exhibit P1 were prepared and sealed with the seal of SPS and were taken into possession vide Memo Exhibit PB. The seal after use was handed over to SI Harbhajan Singh who was also member of the Police party. It is further alleged that as a result of the search of the gunny bag which had been thrown by Ranjit Singh, accused, 25 kgs poppy husk was recovered and 250 grams poppy husk was taken out from the recovered poppy husk as sample and both the parcels containing the sample and the remaining poppy husk were sealed in the same manner as stated herein above. It is further alleged that the sample and the seals were deposited with Jaswant Singh MHC after return to the Police Station. Appellant Ranjit Singh was arrested on 7th June, 1992.

The prosecution in order to prove its case examined two witnesses. namely PW 1 ASI Jagbir Singh and PW2 Surinder Pal Singh SI and also tendered in evidence affidavit Exhibit PA of Constable Gurnam Singh, Exhibit PD of MHC Jaswant Singh and Chemical Examiner''s report, Exhibit PE.

Appellants/accused examined DW1 Amrik Singh Constable who had brought register No. 19 maintained by the Police Station Goindwal.

Relying on the aforesaid prosecution evidence, the learned Additional Sessions Judge convicted and sentenced the appellants as stated hereinabove.

Mr. Pheruman, learned counsel appearing on behalf of the petitioner submitted that the specimen seal/CFSL form containing the specimen seal, alleged to have been prepared at the time of sealing the sample and the remaining poppy husk were not handed over to Moharrir Malkhana nor the prosecution has led any evidence to the effect that the same was sent from Malkhana to the Chemical Examiner for comparison. In this connection, the learned counsel drew my attention to the statement of DW1, Amrik Singh, Constable, who had brought the record of the case concerned from Malkhana of Police Station Goindwal Sahib. In his statement, he had stated that neither the sample seal nor the sample parcel had been entered in the Register No. 19. In his crossexamination, he, however, stated that as per entry No. 52 of 1992, case property of this case along with the sample parcel were deposited with the MHC and samples were sent to Chemical Examiner vide No. 45/21 through Constable Gurnam Singh. In reply to a Court question, he stated that "no sample seal has been deposited as per this entry." The learned counsel further submitted that Constable Gurnam Singh who is alleged to have taken the sample to the Chemical Examiner, has not been examined. He, therefore, contended that there was violation of Section 52(3) and Section 55 of the Act. In support of his submission, the learned counsel placed reliance on two judgments of the Delhi High Court in the case, Pradeep Kumar v. State, 1990 (1) C.C. Cases 69 and Mool Chand v. State, 1993(1) C.C. Cases 564.

The learned counsel further submitted that the findings of the learned trial Court are based only on the evidence of Police officers and in this case, no independent witness was associated when the alleged recovery of poppy husk was made from appellant Paramjit Singh. In this connection, he drew my attention to the statement of PW ASI Jagir Singh, wherein he had stated that the poppy husk was weighed with the help of weight and scale which was brought through Pargat Singh and he had brought the same from village Chak Mahal in his vehicle. The learned counsel submitted that since Pargat Singh had gone to village Chak Mahal to bring the weights and scale, he could have brought some independent witness/witnesses in his vehicle. He, therefore, contended that the impugned judgment was liable to be set aside on this ground also. In support of this submission, he placed reliance on a judgment of this Court in Swarna v. State of Punjab, 1987(2) Recent CR 117 .

Lastly the learned counsel for the appellant submitted that there was violation of Section 50 of the Act also. He submitted that there are statements of the Police Officers only to the effect that the appellant Paramjit Singh was given the offer to be searched before a Gazetted Officer or a Magistrate, but this statement has not been corroborated by any independent witness. He submitted that in any case, the said appellant should have been taken to at least a Gazetted Officer for his personal search. In support of this contention he placed reliance on a judgment rendered by a Division Bench of this Court in Amrit Singh v. State of Haryana, 1990(2) Recent CR 525 .

Mr. Garg, learned AAG draw my attention to the report of the Chemical Examiner (Exhibit PE) and submitted that this report has been prepared on the CFSL form which contains the specimen seal and it has been stated in the report itself that the seals on both the Exhibits were intact and agreed with the sample seal. He, therefore, contended that there was no force in the submissions made by the learned counsel for the appellant that the specimen seal/CFSL form containing the specimen seal was not deposited in the Malkhana.

As against the contention of the learned counsel for the appellant that no independent witness was associated, the learned AAG drew my attention to crossexamination of PW2 Surinder Pal Singh, wherein he stated that "Few persons met us on our way to Police Station from the place of recovery. No body offered to join us." Learned counsel, therefore, contended that the explanation for not associating any independent witness has been given satisfactorily by the said witness. Lastly, the learned counsel submitted that as per the averments made in the FIR, the offer was given to the accused, Paramjit Singh to be searched from a Gazetted Officer or a Magistrate. He, however, submitted that this fact could not be corroborated by any independent witness as no independent witness was agreeable to be associated in the case as explained by PW 2 Surinder Pal Singh. He also contended that Section 50 of the Act does not stipulate that such offer must be made in the presence of the independent witnesses. In support of his submission, the learned counsel placed reliance on a judgment of the Supreme Court in the case, State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : 1994(2) SCC 299 .

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record.

I do not find any merit in the contention urged by the learned counsel for the appellants that there is a violation of Section 50 of the Act as the statement of Police Officers that the appellant Paramjit Singh was given the option to be searched before a Gazetted Officer or a Magistrate, had not been corroborated by any independent witness. From the evidence of the two police officers, ASI Jagir Singh and Surinder Pal Singh SI/SHO, I find that no question in crossexamination was put to these witnesses that the offer to be searched before a Gazetted Officer or a Magistrate was not given to accused Paramjit Singh. Even otherwise, as per the law laid down by the Supreme Court in the case of Balbir singh (supra), such statement of the Police Officers is not required to be corroborated in every case.

As regards the contention of the learned counsel of the appellants that the provisions of subsection (3) of Section 52 and Section 55 have been violated, it will be relevant to reproduce the said provisions which read as under:

"52. Disposal of persons arrested and articles seized. (1) ......

(3) Every person arrested and article seized under subsection (2) of Section 41, shall be forwarded without unnecessary delay to

(a) the officerincharge of the nearest Police Station, or

(b) the officer empowered under Section 52........"

Police to take charge of articles seized and delivered.

An offierincharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station."

In the case of Balbir singh (supra) it has been held by the apex Court that the provisions of Sections 52 and 57.

"contain certan procedural instructions for strict compliance by the officers. But if there is no strict compliance of any of these instructions that by itself cannot render the act done by these officers null and void and at the most, it may affect the probative value of the evidence regarding arrest or search and in some cases, it may invalidate such arrest or search. But such violation by itself does not invalidate the trial of the conviction if otherwise there is sufficient material. Therefore, it has to be shown that such noncompliance has caused prejudice and resulted in failure of justice. The officers, however, cannot totally ignore these provisions and if there is no proclamation or noncompliance or where the officers totally ignore the provisions then that will definitely have an adverse effect on the prosecution case and the Court has to appreciate the evidence and the merits of the case bearing these aspects in view. However, the mere noncomplinace or failure to strictly comply by itself will not vitiate the prosecution."

Coming to the facts of the present case, the prosecution tendered in evidence the affidavit of Gurman Singh Constable (Exhibit PA). In this affidavit, it has been stated that on 26th May, 1992, MHC Jaswant Singh of P.S. Goindwal Sahib had given him two parcels of poppy husk weighing 250 grams each, sealed with seal for SPS for depositing in the office of the Chemical Examiner and the said two parcels sealed with the seal of SPS were deposited in the office of the Chemical Examiner, Amritsar, on 26th May, 1992 and receipt was handed over to MHC on 26th May, 1992. However, there is no mention of the specimen seal/CFSL form containing the specimen seal having been given by MHC Jaswant Singh to said Gurnam Singh or Gurnam Singh having deposited the same in the office of the Chemical Examiner. On 13th July, 1994, the prosecution tendered in the evidence affidavit (Exhibit PB) of MHC Jawant Singh. In this affidavit, it has been stated by MHC Jaswant Singh that on 22nd April, 1922, Shri Surinder Pal Singh, SHO PS Goindwal Sahib, had deposited with him the case property of this case; two parcels of poppy husk; samples weighing 250 grams each along with the sample seal. It has further been stated that on 26th May, 1992 two parcels containing the sample seal with the seal SPS along with the sample seal were taken out from Malkhana and handed over to Constable Gurnam Singh for delivering the same in the office of the Chemical Examiner, Amritsar, but there is no mention of any entry in the Malkhana Register regarding the receipt of the sample seal in the Malkhana. It may also be pointed out here that this witness was not made available for crossexamination by the counsel for the accused.

On the other hand, the defence summoned DW 1 Amrik Singh, Constable along with Malkhana Register No. 19. In his statement, this witness stated that according to entry No. 52 of 1992, the case property of this case along with the sample parcel were deposited with MHC and the samples were sent to the Chemical Examiner through Constable Gurnam Singh. In reply to a question from the Court, this witness clearly stated "No sample seal has been deposited as per this entry." From this it is clear, that there is no entry in the Malkhana Register regarding the deposit of the sample seal with regard to the present case. The explanation with regard to the absence of this entry in the Register could, however, have been given by MHC Jawant Singh who was the Moharrir Malkhana at the relevant time, but the prosecution chose to tender his affidavit in evidence and did not produce him in the witness box. Even in this affidavit, no explanation whatsoever has been given for the absence of entry regarding the deposit of sample seal. Even in the affidavit (Exhibit PA) of Gurnam Singh, it has been stated that on 26th May, 1992, he was given two parcels of poppy husk weighing 250 grams each by MHC Jaswant Singh for depositing in the office of Chemical Examiner but there is no mention of sample seal having been given to him by MHC Jaswant Singh. The absence of any explanation for noncompliance of subsection (3) of Section 52 and Section 55 of the Act will definitely have an adverse effect on the prosecution case, particularly when no independent witness was associated at the time of search and sealing the samples of poppy husk. In these circumstances, the benefit of doubt will have to be given to the appellants.

For the reasons stated hereinabove, the appeal filed by the appellants is allowed and the appellants are acquitted of the offence under Section 15 of the Act and they are directed to be released forthwith in case they are not required to be detained in any other case.