Piara vs State of Punjab

Dr. Sarojnei Saksena, J.

Appellantaccused Piara has preferred this appeal against the judgment dated December 8, 1986 whereby he was held guilty under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) by Shri G.S. Khurana, Additional Sessions Judge, Jalandhar, and was sentenced to undergo 10 years'' rigorous imprisonment with a fine of Rs. 1 lac and in default to undergo further rigorous imprisonment for one year.

Factual matrix of the case is that on December 9, 1985, Head Constable Sat Pal PW2 of Police Station Nawanshahr along with Head Constable Raj Kumar and Constable Sukhdev Ram was going on raid from Bus Stand Aur to village Arapar. After covering a distance of about 200 yards from Bus Stand Aur, they noticed the accused going ahead of them carrying a Jhola. Noticing the police party coming behind him, he tried to slip away walking briskly. On suspicion he was apprehended. Search of that Jhola was taken. It contained 5 Kgs of poppy husk. 100 grams were separated therefrom and were sealed separately. Remainder was sealed in that Jhola itself. Seal bring impression ''SP'' was used. Seizure Memo. Exhibit PA was prepared. After use, seal was handed over the Head Constable Raj Kumar PW 1. Ruqa Exhibit PB was sent to the Police Station, whereupon FIR Exhibit PB/1 was recorded under Section 9 of the Opium Act, 1978. Sat Pal PW 2 prepared the rough site plan Exhibit PC. Statement of Head Constable Raj Kumar was recorded by Head Constable Sat Pal. The seized contraband along with the accused was brought to the Police Station. Sealed parcels were deposited with MHC Jasbir Singh. Later on sample was sent to Assistant Chemical Examiner, Amritsar. On analysis, the Expert confirmed vide his report Exhibit PD that it was poppy husk. Thus, the appellant was prosecuted under Section 15 of the Act.

Accused pleaded not guilty. His plea was that earlier his grandmother filed a complaint against police officials of P.S. Nawanshahr. In order to pressurise her this false case was foisted on the accused.

During trial, the prosecution examined Raj Kumar PW 1 and Sat Pal PW 2. Affidavits of MHC Jasbir Singh Exhibit PE and of Joginder Singh Exhibit PF were tendered in evidence. Report of Assistant Chemical Examiner Exhibit PD was also tendered in evidence. Accused also adduced evidence and examined Lachhman Dass DW 1.

On the appraisal of the evidence on record, the trial court came to the conclusion that the prosecution had proved beyond doubt that on December 9, 1985, the accused was having in his possession 5 Kgs of poppy husk for which he was not having any licence or permit. Accordingly, he was convicted and sentenced as stated at the very outset.

Appellant''s learned counsel assailed the conviction and sentence on various grounds. His first contention is that Head Constable Sat Pal PW 2 was in no better position that a complainant of this case. It is evident from the statements of Sat Pal PW 2 and Rai Kumar PW 1 that Sat Pal investigated this offence as well. He not only seized the contraband from the accused but also prepared its sample, sealed both the parcels, sent the ruqa prepared the site plan, recorded the statements of the eyewitnesses and deposited seized contraband with MHC Jasbir Singh. Thus, according to him, the whole of the investigation being against the settled tenets of criminal jurisprudence, is vitiated and on this count alone, the accused is entitled to acquittal. To strengthen his above argument, he was relied on Gyan Chand v. State of Rajasthan, 1993 Crl. L.J. 3716, Darshan Kumar v. State of Rajasthan, 1994 Crl. L.J. (NOC) 28, Nathiya v. State of Rajasthan, 1992 Crl. L.J. 2342 and Bhagwan Singh v. State of Rajasthan, AIR 1976 SC 985. He also referred to a Single Bench decision of this Court rendered by K.K. Srivastava, J. in Criminal Appeal No. 7SB of 1987 decided on March 19, 1995, wherein relying on Gyan Chand''s and Darshan Kumar''s cases (supra) it was held that since the police official, who had seized the contraband, had conducted the investigation also, investigation was bad in law.

I find myself unable to subscribe to this view. A Single Bench of Rajasthan High Court in Gyan Chand''s case (supra) has held that the investigation by an officer, who after receiving information of an offence under the Act and making search and seizure, investigates case personally, is violative of principles of criminal jurisprudence. Such a police officer is not appropriate authority to investigate as his status is same as that of a complainant. On that count conviction was held liable to be set aside. The same view is reiterated in Darshan Kumar''s case (supra). Earlier to these decisions, a Single Bench of Rajasthan High Court took the same view in Nathiya''s case (supra), wherein it is suggested that in such cases investigation should be by an independent agency and not by that very officer who recovered the contraband from the accused.

Bhagwan Singh''s case (supra) is distinguishable because in that case Head Constable, who was himself the person to whom bribe was alleged to have been offered and who lodged the FIR, as informant or complainant, investigated the case later on. Their Lordships of the Apex Court held that this was an infirmity which was bound to reflect on the credibility of the prosecution case.

In all the above decisions of Rajasthan High Court as well as of this Court, provisions of Section 67(c) of the Act were not adverted to. Chapter V of the Act deals with procedure. Under sections 42(1), 43 and 44 the officers (enumerated therein, to be notified by the Central Government or by the State Government) are empowered to enter into and search any building etc., effect search and seize any drug or substance found therein and also to arrest without warrant or authorisation, any person committing an offence punishable under Chapter IV of the Act. After making search, seizure and arrest, the same officer is duty bound to forward the person arrested and the articles seized to officer incharge of the nearest police station. Section 55 of the Act provides that officer incharge of the police station shall take charge of and keep in safe custody, the articles so seized and delivered to him, and shall allow any officer who may accompany such articles to the police station; 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 officer incharge of the police station. Section 67 of the Act provides that any officer, referred to in section 42, who is duly authorised by the Central Government or the State Government, may, during the course of any enquiry in connection with the contravention of any provision of the Act

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(c) examine any person acquainted with the facts and circumstances of the case.

In this section, the word ''enquiry'' is used by the Parliament. This word is not defined in this Act, but terminology ''investigation and enquiry'' are defined in section 2(f) and (g) of the Code of Criminal Procedure (in short, the Code). From the definition itself, it is clear that investigation is a word confined to proceedings of the police or persons other than Magistrates and that enquiry is the word appropriate to proceedings of Magistrates prior to trial. Enquiry means the judicial proceedings or any judicial enquiry provided in the Act. It does not include any enquiry (sic) relating to investigation.

Thus, it is obvious that if the police officer who makes search, seizes the contraband, arrests the accused, draws the sample, seals the contraband articles as well as the sample, prepares the site plan and records the statement of a witness present at the time of the search and seizure, he is empowered to perform all these duties under the aforesaid sections of the Act.

Under the Punjab Police Rules, 1934, Volume III, Rule 22.3 envisages that a Head Constable is posted at every police station as station clerk, who under the control and supervision of the officer in charge of the police station, acts as clerk, accountant, record keeper and custodian of government and other property at a police station. Rule 22.16 defines ''case property'' which includes weapons, articles and property seized in connection with criminal cases. Rule 22.15 provides :

"Subject to the orders and responsibility of the officer incharge of the police station, the station clerk shall be considered to be incharge of all public property including money and case property in his station house."

From the statement of Sat Pal PW 2, it is evident that after completing the investigation at the spot, he returned to the police station and deposited the case property with MHC Jasbir Singh with seals intact. From the above Police Rules, it becomes clear that Jasbir Singh received the case property from Head Constable Sat Pal PW 2 on behalf of Station House Officer.

From the report Exhibit PD, it is evident that the sample was sent to the Chemical Examiner for analysis by Station House Officer. It was forwarded by Senior Superintendent of Police, Jalandhar. Thus, this argument has no substance that even after depositing the case property at the police station, Head Constable Sat Pal got it remitted to Chemical Examiner for analysis.

Further, a Division Bench of this Court has held in Murli Dhar v. State of Haryana, 1990(3) Recent CR 656 that police officers authorised to act under the Act either in view of section 74 of the Act as would be deemed to have been appointed under the Act and appointed under the Act are required to follow the procedure as provided under Sections 52, 55 and 57. If these provisions are not followed, the action would not be saved in view of Section 156 of the Code. The power of the Executive Police as envisaged by Section 156 of the Code to investigate offences committed under the Act is thus ousted, curtailed and controlled by the provisions of the Act. It is further held that the Act is a Code in itself. In view of the Section 51 of the Act, the provisions of the Code shall apply in so far as they are not inconsistent with the provisions of the Act to warrants issued and arrests, searches and seizures made under the Act. Thus, in my humble view Head Constable Sat Pal cannot be called a complainant of this case. He has performed all the duties which he was required to perform under sections 42(1), 52, 55 and 67 of the Act. Keeping this provision in view, the Punjab Government as well as Haryana Government, while issuing notifications to empower police officers, enumerated therein, to conduct search and seizures etc., have empowered such officers not only under section 41(2) of the Act but also under Section 67 of the Act. I find that the above contention has no substance.

The second assailment is with regard to report Exhibit PD. Appellant''s learned counsel, relying on Mohd. Hanif Sheikh Abrahim v. State of Gujarat, 1995(1) Crimes 274, contended that on the basis of this report, appellant should not have been convicted because this report of the Chemical Examiner contained his bare opinion and assertion that contraband articles was poppy head. He has not given full and complete data disclosing tests or experiments performed by him. Due to this lacuna, this report loses its probative evidentiary value and cannot be used against the accused for recording order of conviction.

Report stating bald conclusions in positive or negative in the matter of substance sent to the Chemical Examiner is of no value. It must state reasons for conclusion and tests applied. It is necessary that the Chemical Examiner should mention the kind of tests he has used and also give the grounds of his opinion (Ram Singh v. State, ILR 1952(2) Rajasthan 93). The report of the Chemical Examiner must show the tests or experiments performed by him, factual data revealed by such tests and the reasons leading to the formation of the opinion from such factual data. Opinion is no evidence unless reasons in support of the opinion are given (Suleman v. State of Gujarat, AIR 1961 Gujarat 120). The probative value to be attached to the report must depend upon a variety of circumstances, such as, data available to the Chemical Examiner, the method of analysis adopted by him, the fullness of the conclusions, and, speaking generally, the vulnerability to which his premise is subject. In order that a certificate (report) may inspire confidence in the mind of the Court, it is not sufficient that the Chemical Examiner merely records his negative opinion. This view is expressed by a Division Bench of Bombay High Court in State v. Bhausa Hanmantsa Pawar, 1962(2) Cri LJ 466.

A Single Bench of Delhi High Court in Jai Parkash v. The State, 1979 Cri.L.J. 1167 has held that it is unnecessary to get seized opium examined by a Chemical Examiner. People by smell and sight could identify opium and there was no need for chemical examination. In Ismail v. State of Kerala, 1991 Cri.L.J. 2945 a Single Bench of Kerala High Court, while considering such a report submitted by Chemical Examiner under the provisions of the Act, has held that Analyst mentioning in his report the tests conducted by him but not mentioning positive results of each test, such a report is not invalid on that ground.

Keeping in mind the above guidelines, in my view the decision in Mohd. Hanif Sheikh Abrahim''s case (supra) is distinguishable on facts. In that case, the Public Analyst gave his bare opinion that the sample sent for analysis is charas. No further data was furnished by the Expert, but in this case from a plain perusal of report Exhibit PD, it is apparent that the Expert has supplied the data also for giving his opinion that the sample contained poppy husk. He has specifically mentioned that microscopiclest was done, morphine and maconic acid were found present. Thus, it cannot be said that this report suffers from any lacuna, as stated above. On this count, I find that on the basis of this report the accused could have been convicted. Further, at the time when this report was tendered in evidence, no objection was raised by the accused. No prayer was made thereafter to call the Chemical Examiner for examination. No doubt, that will not relieve the prosecution of its bounden duty to prove beyond reasonable doubt that the seized article is a contraband under the Act. Nevertheless, as I have discussed above, in this report the tests conducted and the result obtained are enumerated. On all the facts stated above, I find that the report Exhibit PD has evidentiary value and conviction can be based on it.

The third contention is that during the trial, affidavits of MHC Jasbir Singh Exhibit PE and of Constable Joginder Singh Exhibit PF were tendered in evidence on August 13, 1986, but these witnesses were not examined in the Court. Hence, the accused had no opportunity to test the veracity of the statements of these deponents by way of crossexamination. Even this link evidence was not put to the accused when he was examined under section 313 of the Code. Even this contention has little force. From the order sheet dated August 13, 1986, and from the zimini order of this date, it is evident that the accused was present with his counsel when these affidavits were tendered in evidence. Learned defence Counsel declined to crossexamine these witnesses. From question No. 4 of the examination of the accused, it is evident that this link evidence was also put to him for explanation. Further, it is not even suggested how this has caused any prejudice to the accused, resulting in miscarriage of justice.

The fourth objection is that in this case, when the accused was searched no independent witness was joined, though independent witnesses were available on the spot, and on this count alone, since the statements of both the official witnesses are inconsistent and contradictory accusedappellant could not have been convicted on the basis of their testimony. Even this objection does not hold water. Raj Kumar PW 1 has stated that the accused was apprehended at about 5.45 a.m. before sunrise but after dawn. No body from the village was summoned before the search, nor any body came there. The nearest house from the place of recovery was at a distance of 100/150 yards. From the statements of Raj Kumar PW 1 and Sat Pal PW 2, it is evident that when this police party was proceeding from Bus Stop Aur towards village Arapar, they noticed the accused going ahead. As his movements were found suspicious, he was apprehended and immediately search was taken. Under the circumstances, there was no occasion for these witnesses to summon any witness from the village at such an early hour of the day. Sat Pal PW 2 has clearly stated in crossexamination that no body was available near the place of recovery, nor any body was summoned from the village.

The Apex Court has laid down in State of Punjab v. Balbir Singh, 1994(1) Recent CR 736 that testimony of official witness is not to be doubted or discarded merely on the ground that he happened to be an official. As a rule of caution, Courts are to look for independent corroboration. This again depends on whether the official has deliberately failed to comply with the provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly complying with these provisions (Sections 100 and 165 of the Code). From the statements of Raj Kumar PW 1 and Sat Pal PW 2, it is evident that at that early hour of the day, they had no time and no opportunity to associate any independent witness. No body was present on the spot. In such a case of chance recovery, if independent witnesses are not associated, the sworn testimony of the official witnesses cannot be discarded on this count alone.

So far as the allied objection is concerned, appellant''s learned counsel failed to point out any material contradiction or inconsistency in the statements of both these prosecution witnesses to make their testimony unreliable, infirm and undependable.

It is also objected that the mandatory provisions of section 50 of the Act were not followed. Hence, the whole of the investigation is vitiated and the accused is entitled to acquittal. In Balbir Singh''s case (supra) the Apex Court has held that in case of chance recovery, the provisions of section 50 of the Act are not attracted. As stated above, from the statements of Raj Kumar PW1 and Sat Pal, PW2, it is evident that it was a case of chance recovery.

Lastly, it is contended that the accused was falsely implicated in this case as his grandmother lodged a complaint against the police officials of Police Station Nawanshahr. To prove this, the accused examined Lachhman Dass DW1. Even this defence plea does not help the accused. From the statement of Lachhman Dass DW1 it is apparent that Bishni wife of Chinta lodged a complaint against Roshan Lal ASI, Vir Kumar ASI, Avtar Singh Head Constable and Avtar Singh Constable of Police Station Nawanshahr under sections 427/354/451/380/506 and 504 of the Indian Penal Code on October 5, 1983. This complaint was dismissed in default. Thus, it is evident that Raj Kumar PW 1 and Sat Pal PW 2 were not arrayed as accused in that complaint. Further, Sat Pal PW 2 has stated in crossexamination that 7/8 months prior to this recovery, he was posted at Police Station Nawanshahr. Therefore, the said complaint motivated Sat Pal PW 2 to implicate the appellant falsely in this case does not stand to reason. There is to suggestion even that Sat Pal implicated the accused in this case with some other oblique motive.

Finding all the contentions of appellants learned counsel meritless and devoid of any substance, this appeal is dismissed. The conviction and sentence of the appellant is confirmed.