Piara Ram vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 22.9.1994 passed by the Court of Additional Sessions Judge Patiala who convicted the appellant Piara Ram under section 18 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was further directed to undergo rigorous imprisonment for a period of one year.

Brief facts of the case are that on 19.6.1990, ASI Amarjit Singh Incharge Police Post Shatrana alongwith other police officials set out for patrolling in Government Vehicle No. PAP 1812. When the police party was present near Primary Health Centre, Shatrana, Bali Ram son of Khushala Ram, resident of Shatrana met the Police Party. When the ASI and Bali Ram were busy in talking, the appellant was seen coming from the opposite side towards Bus Stand Shatrana carrying a jhola of red colour in his hand. On seeing the Police Party, the appellant abruptly turned towards his left side and tried to avoid his presence. He was, however, intercepted and his particulars were enquired. Suspicion having arisen in the mind of the ASI, he apprised the appellant of his right to be searched either before a Gazetted Officer or a Magistrate. The appellant, however, did not desire to be taken to a Gazetted Officer or a Magistrate for search and offered himself for search by the ASI. Consent memo Ex.PA was prepared. It was signed by him and attested by Bali Ram independent witness and HC Kanwal Nain. Thereafter the ASI carried the search of the jhola with the appellant and found it containing opium. On weighment it came to be 4 kgs 500 grams. Out of it 10 grams was separated as a sample and put into a small plastic bag, whereas remaining opium weighing 4.490 kgs was wrapped in a glazed paper and transferred in a Dabba tin. Both were made parcels and were sealed with the seal ''AS''. Sample seal was also retained and seal was handed over to HC Kanwal Nain. Both the parcels and Jhola were taken into possession vide recovered memo Ex.PA attested by the aforesaid witnesses. The Investigating Officer sent ruqa Ex.PD for the registration of the case as the appellant could not produce any licence for the possession of the same, on the basis of which formal F.I.R. was recorded in the concerned Police Station. The Investigating Officer also prepared rough site plan Ex.PH of the place of the arrest. The appellant was then produced before the S.H.O. Ajit Singh who verified the investigation of this case and resealsed the case property with his own seal bearing inscription ''AS''. Thereafter on return to the Police Station handed over the case property to the MHC. The sample of the opium was sent to the office of the Chemical Examiner through office of the S.S.P. on 25.6.1990. However, it was received back with certain objections and again it was sent on 9.7.1990 through Constable Amrik Singh No. 1686. The Chemical Examiner vide his report Ex.PG opined the contents of the sample to be of opium and on completion of the investigation, the appellant was challaned in the court of Illaqa Magistrate who supplied copies of the documents as required by law and vide commitment order dated 28.11.1990 committed the appellant to the Court of Sessions. Vide orders dated 10.5.1991 the appellant was chargesheeted on the allegations that on 19.6.1990 at about 5 a.m. in the area of Shatrana, he was found in possession of 4.500 kgs of opium without any permit or licence and thereby committed an offence under Section 18 of the N.D.P.S. Act. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined PW.1 HC Kanwal Nain, Investigating Officer ASI Amarjit Singh PW.2 and Inspector Ajit Singh as P.W.3. The prosecution gave up Shri Bali Ram as having been won over by the appellant. However, it tendered in evidence affidavits of formal witnesses besides the report of the Chemical Examiner and closed the case.

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 accused. Accused denied those circumstances and stated as follows :

"I am innocent. I have been falsely implicated in this case as I was a witness against Sangrur Police for taking away forcibly the tractor of my brother Noora Ram. 10 days before the false implication, I was going to Sunam Court to appear as a witness and I was arrested from there by the police of P.S. Partran in the presence of Noora Ram and Khatu Ram from the court premises and they kept me illegally for 10 days in P.S. Patran and when my brother objected, they forcibly planted a case against me just to pressurise that I should not appear as a witness against Sangrur Police in the complaint of Noora Ram, my brother."

When called upon to enter his defence the accused examined Noora Ram as D.W. 1 who deposed about the innocence of the appellant.

Learned trial Court vide judgment and order dated 22.9.94 convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence the present appeal.

Before I deal with the submissions which have been raised by the learned counsel for the appellant in this appeal, I would like to quote the reasons given by the learned Trial Court for convicting the appellant and those reasons are contained in paras 8 to 13 of the judgment as under :

"8. As regards the first objection regarding the absence of independent corroboration, it is no doubt there but the only independent PW namely Bali Ram joined by the police has not been put in the witness box on the ground of his having been won over by the accused and we are left with the statements of official witnesses consisting of A.S.I. Amarjit Singh and H.C. Kanwal Nain. It is, by now, well settled that the official witnesses are as good and reliable as nonofficials unless they are shown to be inimical or hostile towards the accused as it is not a judicial approach to distrust and suspect a police officer without good ground. Therefore, such an attitude could do neither credit to judiciary nor to the public. The entire evidence has, therefore, to be judged without any preconceived prejudice and prediliction. It is also a matter of common knowledge that the covillagers sometimes oblige the police by joining the police party but later on avoid appearing against each other for obvious reasons. Bali Ram, who was with the police at the time of the alleged recovery, is of Shatrana, to which place the accused belongs. His siding with the accused is, therefore, not unnatural and, atleast, is hardly a ground close scrutiny. It may also be recapitulated here that according to the defence taken by the accused, about 10 days prior to the occurrence, when he was going to Sunam Court to appear as a witness, he was arrested by the police of P.S. Patran, whereas his brother D.W.1 stated otherwise. According to him, it were ASI Harnek Singh and HC Jasmer Singh of Ladha Kothi who took Piara Ram. No liaison is shown between these two police officials and ASI Amarjit Singh, Investigating Officer, who was posted at Police Post Shatrana. Thus, merely because of their status both A.S.I. Amarjit Singh and H.C. Kanwal Nain cannot be disbelieved. Learned Addl. Public Prosecutor also cited 1991(3) Recent Criminal Reports 197 Pritam Singh v. State of Punjab (P&H), in which 4 kgs. of opium was recovered and the case of the prosecution was based on official witnesses as the only independent witness was given up. There too no enmity or motive was attributed to official witnesses and the accused had not agitated the matter to the higher authorities that he was falsely implicated. The statements of official witnesses were believed with an observation that recovery of heavy quantity of opium also rendered assurance to testimony of official witnesses. The accused in our case has tried to show that the police was inimical towards him and he had filed an application Ex. D1 to SSP Sangrur. This application does not show if the two official witnesses examined in the case had anything to do with the action taken against him by the Sangrur Police.

The next objection against the prosecution evidence is the discrepant statements of the two official witnesses. Before coming to the same, it may be recapitulated that the recovery from the accused was allegedly made in the year 1990 whereas the witnesses appeared in the year 1993 i.e. after 3 years, a long gap surely to effect the human memory, it being fallible. Let us come to the pointed discrepancies. PW1 in his examinationinchief stated that on seeing the police party, the accused crossed the road and went to the left side in the fields and was apprehended; whereas the other witness stated that the accused was apprehended when he tried to cross the road. Here it may be mentioned that in the cross examination to a question, this P.W.1 answered that the accused was apprehended when he had just crossed the road. So due to this clarification in the cross examination, hardly it can be said to be a material discrepancy particularly when there is site plan Ex. PH showing the place of apprehension of the accused just on the edge of the road adjoining the open field on the other side. The next objection is that according to P.W.1, they had reached the spot at 4.00 a.m. and remained there upto 8.40 A.M., whereas according to PW.2, they had started from the Police Station at 5.30 a.m. This is again a discrepancy attributable to the lapse of time. Similarly, there is discrepancy that according to PW1, weights and scale were got arranged from a nearby place; whereas according to PW.2, these were with him and no official was sent for bringing the same. This is such an immaterial discrepancy that can hardly belie otherwise cogent and consistent statements of the officials witnesses. The next point was regarding the box used for preparing the parcel of the sample. As per prosecution story, the sample parcel was put in a plastic tin, whereas in the report of the Chemical Examiner Ex.PG, the word used in the endorsement is ''Bottle''. This contention is misconceived because in Ex.PG, the parcel is mentioned in the typed proforma and writing of word ''Bottle'' in the already typed proforma does not mean that the sample was sent in the bottle. Hence, no importance can be attached to this discrepancy.

After dealing with the pointed out inconsistencies in the statements of official P.Ws., which I have held to be of unimportant nature and attributable to the time gap, I take up the objection regarding the non compliance of the various provisions of the Narcotic Drugs and Psychotorpic Substances Act. The first objection is the noncompliance of Section 50. It is there that the police had recorded to statement of the accused Ex.PA about his consent to the search by the ASI. Section 50 of the Act enjoins on the arresting police officer to take the arrested person, without unnecessary delay, to the nearest Gazetted Officer or a Magistrate if such person so requires. Thus, once it has come in the evidence that the arresting officer apprised the accused of his right to be taken before a Gazetted (Officer) or Magistrate, it will be for the accused to show that he wanted to exercise his right but was declined. Here both the witnesses have clearly stated that the accused was told about his right under Section 50, but he did not express his desire to be taken before a Gazetted Officer or Magistrate. In such circumstances, the question of the statement of the accused being inadmissible in evidence does not arise. It may be recapitulated that the defence of the accused is that he was arrested 10 days earlier to the alleged recovery and was falsely involved on account of enmity. In the circumstances, therefore, there being statements of the official witnesses, against whom there is nothing to disbelieve, it is not possible to hold the noncompliance of the mandatory provisions of Section 50. Learned Addl. Public Prosecutor cited 1990(2) Recent Criminal Reports 297 wherein it has been laid down that the Investigating Officer is not bound to inform the accused that he had a right to be searched before a Gazetted Officer or Magistrate and that search is to be made in the presence of a Gazetted Officer or Magistrate if the accused expressed his desire for the same. On the other hand reference has been made to the latest Supreme Court authority reported as State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 736 , which has laid down that the arresting officer should comply with the provisions of Section 50 before search and the person to be searched should be informed that if he so requires, he shall be produced before a Gazetted Officer or Magistrate and further that failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or Magistrate would amount to noncompliance of Section 50, which is mandatory and vitiates the trial. From the facts already discussed above, there is compliance of this Section 50 as the arresting Officer had told the accused of his right enshrined by Section 50 of the Act. In view of this conclusion, no benefit of the law laid down in 1991(2) Recent Criminal Reports 636 can be given to the accused on the ground that he made statement Ex. PA to the police and the same is not admissible.

Learned Counsel for the accused then argued that the Investigating Officer Amarjit Singh ASI did not comply with the provisions of producing the accused before the SHO. After the recovery as there is no statement under Section 161 Cr.P.C., of the S.H.O. This contention is fallacious because S.H.O. had appeared as P.W.3 and stated about the production of the case property before him. It was not necessary for the Investigating Officer to have recorded his statement under Section 161 Cr.P.C. nor it was necessary for the S.H.O. to have prepared a memo in this regard. It was also not essential for the S.H.O. to have broken open the seals of the Investigating Officer for verifying the contents and then resealing it, if he was otherwise satisfied about the investigation and the recovery, putting his own seals on the parcels clearly proves the compliance of the requirement.

The next limb of this argument was the noncompliance of the requirements of Section 52(2) necessitating the arrested person and article seized under warrant issued under subsection (1) of Section 41 to be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued. This subsection is attracted only when the arrest and seizure is made under the warrant issued by the Magistrate. So, it is not applicable to the case in hand. There is, however, Section 52(A) dealing the procedure for disposal of seized Narcotic drugs and Psychotropic substances. Subsection (2) of this Section is the relevant Section. It provides that where any narcotic drugs or psychotropic substances have been seized and forwarded to the officer incharge of the nearest Police Station, the officer incharge shall prepare an inventory of such narcotic drugs containing such details relating to their description, quality, quantity, mode of packing etc. or such other identifying particulars of the narcotic drugs and any other particulars as he may consider relevant to the identify of the narcotic drugs and make an application to any Magistrate for the purpose of certifying the correctness of inventory so prepared or taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true or allowing to draw representative samples of such drugs or substances in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. When such an application is made under subsection (2) above, the Magistrate shall as soon as may be allow the application. The reading between the lines of this Section shows that it is only directory in nature and depends upon the circumstances of the case. Neither by the Hon''ble Supreme Court in Balbir Singh''s case (supra) nor our own Hon''ble High Court in 1994(1) Recent C.R. 303, State of Punjab v. Kulwant Singh has held the compliance of this rule a mandatory one nor the noncomliance vitiates the trial. Therefore, effect that the case property was not produced by the S.H.O. before the Magistrate immediately after it was produced before him by the Investigating Officer cannot be held to be fatal to the prosecution case.

Learned Counsel for the accused last of all referred the defence taken by the accused which I have already dealt with while disposing of other objections against the prosecution case. To reiterate the accused took plea in his statement under Section 313 Cr.P.C. that Sangrur Police had forcibly taken the tractor of his brother Noora Ram, to which the accused was a witness. When after 10 days, he was going to Sunam Court to appear as a witness, he was arrested there by the police of P.S. Patran in the presence of Noora Ram, his brother and Khatu Ram. He was kept for 10 days in P.S. Patran and when his brother objected, this case was planted on him to pressurise that he should not appear as a witness against Sangrur Police. In support of this plea, Noora Ram, brother of the accused has appeared as D.W.1 and photostat copy of application dated 9.6.1990 Ex.D1 addressed to S.S.P. Sangrur has been placed on the file. Postal receipt is Ex.D.2. The defence taken by the accused does not inspire confidence for holding that ASI Amarjit Singh of P.S. Patran would take to his head to plant such a heavy quantity of opium on the accused simply to please his counterpart of Sangrur District. If at all the accused was to be falsely involved for exercising any pressure in the matter of a complaint by Noora Ram, the same could be expected from the Sangrur Police and not by ASI Amarjit Singh. Moreover, DW.1 Noora Ram stated that the accused was arrested by ASI Harnek Singh and H.C. Jasmer Singh of Ladha Kothi. Apparently, therefore, there is nothing that could show an iota of illwill or enmity on the part of the Investigating Officer to falsely implicate the accused in this case. Hence, I am not inclined to reject the prosecution story giving importance to the defence evidence."

I have heard Shri Ranbir S. Mann, Advocate on behalf of the appellant and Shri Randhir Singh, learned DAG Punjab on behalf of the State and with their assistance gone through the record of the case.

The first argument raised by the learned counsel for the appellant is that the consent statement Ex.PA of the appellant is not admissible in evidence as it is hit under section 25 of the Evidence Act and also barred under the provisions of section 162 Cr.P.C. The argument is not acceptable to the court. Section 25 of the Evidence Act makes those statements of a person made before police inadmissible which are in the nature of confession. The statement Ex.PA is also not the by the provisions of Section 162 Cr.P.C. Section 50 of the N.D.P.S. Act lays down that if there is a reasonable suspicion in the mind of the police against the person that such a person is carrying any narcotic drug from that stage the provisions of Section 50 have to be applied. In the present case, on seeing the Police Party the appellant tried to make turn and on the basis of suspicion he was apprehended. In these circumstances it was obligatory on the part of the Investigating Officer to apprise the appellant of his right that he could be searched either in the presence of a Gazetted Officer or a Magistrate. In this regard his consent statement was recorded by the Investigating Officer in the presence of Bali Ram and Head Constable Kanwal Nain. A reading of the provisions of N.D.P.S. Act would show that there is no statutory form in which notice is to be supposed to be given to the person to be searched. However, applying the rule of caution the law courts have held that if a person who wants to shed his valuable right to the extent that he does not want to be searched either in the presence of a Gazetted Officer or Magistrate, such a search should be witnessed by an independent witness so that the vast powers which are being enjoyed by the police officer are not exploited. In the present case Investigating Officer before recording statement of Piara Ram did take precautions that he associated Bali Ram which indicates that intention on the part of the Investigating Officer was not bad. If he wanted to plant huge recovery of opium, he would not have taken assistance of Bali Ram while recording statement Ex.PA. The statement Ex.PA is not a confessional statement and will not be hit under section 25 of the Evidence Act. It was then submitted by the learned counsel for the appellant that Bali Ram has not supported the case of the prosecution and therefore the appellant is entitled to acquittal. This argument of the learned counsel for the appellant may look allure at the first flash but on deeper scrutiny it is devoid of merit. It is the character of an individual whether he would like to face the cross examination or not. If a particular person ultimately wants to withdraw from the prosecution it cannot be said that the recovery of the opium has not been proved beyond reasonable doubt. Rather if Shri Bali Ram was not prepared to support the allegations, it does not mean that the law courts cannot act upon the statements of the police officials. In these circumstances it is the duty of the law courts to examine the statements of the police official carefully and minutely and with great care and caution so that injustice should not be done to an innocent person. On scanning the statements of the Investigating Officer and Head Constable this court has not been able to find out any material discrepancy worth the name from which doubt can be created about the innocence of the appellant and regarding the recovery of the opium. I cannot lost site (lose sight ?) of the fact that the Investigating Officer in his bona fide produced the appellant before Inspector Ajit Singh who verified the investigation and resealed the case property and it was then handed over to MHC of the Police Station.

The third argument which was raised by the learned Counsel for the appellant is that in this case the link evidence is not complete and further the appellant has not been afforded opportunity of crossexamination. The formal witnesses have tendered their statements on affidavits. The argument is again devoid of any merit. After recovery of the opium and making sealed parcels thereof, the case property with seals intact was produced before Inspector Ajit Singh by the Investigating Officer ASI Amarjit Singh. Shri Ajit Singh also resealed the case property and it was then handed over to MHC on the same day. He kept the same in the malkhana after making entry in register No. 17. A perusal of the affidavit Ex.PF would show that he handed over the sealed parcel of the sample of the opium to Constable Amrik Singh No. 1686 on 25.6.1990. It was taken to the office of the Chemical Examiner who raised certain objections and after removal of those objections it was again entrusted to Constable Amrik Singh on 9.7.1990 and sample of the case property reached the office of the Chemical Examiner alongwith sample seal with seals intact as has been certified by the Chemical Examiner vide his report Ex.PG. The affidavits of MHC Gurmel Singh Ex.PE and that of Constable Amrik Singh Ex.PF are on record. In this manner it cannot be said that the link evidence in this case is missing. The affidavits of formal witnesses were tendered by the Additional Public Prosecutor conducting the trial in the presence of the accused and the accused never asked any opportunity to crossexamine these witnesses. In these circumstances it has to be held that the appellant did not want to crossexamine the formal witnesses who had tendered their statements on affidavits. Thus it can be said that in this case the link evidence is not missing. Counsel for the appellant then submitted that the provisions of Sections 50 and 57 have not been complied with and therefore the appellant is entitled to acquittal. This argument is not acceptable. It has been held by the Suprme Court and by the various courts that provisions of Sections 52 and 57 are not mandatory in character but directory. If the appellant has not been able to show that any prejudice has been caused, in the given circumstances he cannot be granted any benefit of these provisions. So far as recovery of huge quantify of opium is concerned, it stands proved from the statements of H.C. Kanwal Nain (PW.1) and ASI Amarjit Singh (PW.2). As stated above, even after scanning the record I am unable to find any material discrepancy which may go to the root of the case.

Resultantly, I may say that this appeal is devoid of any merit and the same is hereby dismissed.