Prem Singh vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Prem Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Sessions Judge, Jind dated 12.1.1995. By virtue of the impugned judgment, the learned trial Court held the appellant guilty of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as ''the Act'') and subsequently sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for 21/2 years.

The relevant facts are that on 10.3.1993 ASI Hans Raj accompanied by ASI Angrej Singh, Head Constable Bodh Ram, Constables Azad Singh and Dharam Raj were patrolling the area. At about 6.00 p.m., they were present at a place near Karamgarh link road on JindBhiwani road. The appellant was spotted coming from the side of village Ghimana. He was carrying a hand bag in his right hand. On seeing the police party, he turned back and started walking briskly towards the fields. On suspicion he was stopped by ASI Hans Raj. ASI Hans Raj disclosed to the appellant that he suspects him to be in possession of opium or charas. A notice was given to the appellant that if he likes his person can be searched before a Gazetted Officer or the nearest Magistrate. The appellant made a separate statement and expressed his wish that he would like to be searched before a Gazetted Officer.

ASI Hans Raj deputed Constable Dharam Raj to call Deputy Superintendent of Police, Jind. On receipt of the information, Shri Pirthi Singh, D.S.P. came to the spot in his jeep. In his presence the bag of the appellant was searched. The bag was found to contain charas wrapped in a paper. 100 grams were taken as the sample. The sample and the rest of the Charas were converted into two separate parcels and sealed with the seal of ''HR''. The Deputy Superintendent of Police also affixed the seal of ''PSS'' on the sample parcel and the remaining parcel. The specimen of the seals were also affixed and preserved separately. The seals after use were given to ASI Angrej Singh.

Both the sealed parcels were taken into possession vide a recovery memo which was signed by DSP Prithi Singh, Angrej Singh and Bodh Raj. The Investigating Officer sent the ruqa to the police station Sadar, Jind, on the basis of which formal first information report was recorded. Rough site plan was prepared. ASI Hans Raj on coming to the police station deposited the sealed parcels and specimen of the seals in the Malkhana. Subsequently, the sample parcel was sent to Forensic Science Laboratory, Madhuban for analysis. On receipt of the report that contents were Charas, report under Section 173 Cr.P.C. was filed.

The learned trial Court framed a charge against the appellant for the offence punishable under Section 20 of the Act. The appellant pleaded not guilty and claimed trial. During the course of trial, the prosecuting examined three witnesses to the incident namely ASI Angrej Singh (PW1), ASI Hans Raj (PW2) and DSP Pirthi Singh (PW3). Besides that the affidavits of Head Constable Attar Singh and Constable Sube Singh were tendered in evidence. The report of the Chemical Examiner too was tendered by the Public Prosecutor.

The appellant was examined under Section 313 Cr.P.C. The entire prosecution evidence was put to him in the form of different questions. The appellant denied recovery of Charas from his person. His precise defence was that he was going from village Dhanana in a Matador. He had kept Rs. 7,000/ in the bag. He had sold his buffalo. The police stopped the Matador and asked him to get down. He was taken to his house where search was conducted. Rs. 3,000/ were lying in the house which too were collected. Nothing else was recovered from the house. He was taken to police station Sadar, Jind and then to C.I.A., Jind. Thereafter he was involved in the case falsely. In defence the appellant examined Amarjit Singh as DW1 who deposed that appellant was taken into custody by the police on the evening of 10.3.1993 after he alighted from the Matador near byepass of JindBhiwani road.

The learned trial court on appraisal of evidence concluded that there is no ground to discredit the official witnesses. It was further held that all the legal formalities had been complied with and that there was no deviation from the provisions of the Act. With these findings, the impugned judgment and the order of sentence were passed.

Aggrieved by the said judgment and the order of sentence, the present appeal has been filed.

Learned counsel for the appellant at the out set urged that there has been total violation of the provisions of Section 55 of the Act which reads as under :

"An officerincharge 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".

A bare perusal shows that the provisions are mandatory. A duty has been cast on the officerincharge of the police station to take charge of and keep in his safe custody contraband material pending orders of the Magistrate. He can allow any officer who may accompany such articles to the police station and if necessary the sample to be taken. A duty has been further cast upon him to affix his seal on the said articles or on the sample. The object behind such stringent provisions is that keeping in view the severe punishment prescribed under the Act, the Legislature wanted that there should be no tampering with the articles. A statutory duty was cast on the officerincharge of the police station to comply with the provisions of Section 55 of the Act. The same has to be conducted by the said officer. When the legislature requires a particular thing to be done in a particular manner, then it should be so done not only in the same manner but by the person on whom the duty has been so cast.

In the present case in hand, the officerincharge of the police station does not figure. The recovered articles were never produced before him. There was no opportunity for the officerincharge to affix his seal in the sample and rest of the Charas. The case property was never handed over to him. The Investigating Officer made no attempt to contact him. He took it upon himself and proceeded with all the formalities ignoring the provisions of Section 55 of the Act.

It was argued that Deputy Superintendent of Police was present at the spot and had affixed his seals on the sample and rest of the Charas. It was further urged that he is senior officer than the officerincharge of the police station. Therefore, it should be taken as compliance of the provisions of the Act. In the present case keeping in view the provisions of Section 55 of the Act, the contention as such cannot be accepted. As per the prosecution, the Deputy Superintendent of Police was present on the spot but thereafter the sealed samples were handed over to the Investigating Officer. The officerincharge of the police station as referred to above has its role to play under strict provisions of Section 55 of the Act. Merely because a senior officer than the officerincharge had affixed his seal, cannot be taken as compliance of the provisions of the Act. It could only be the officerincharge who could comply with the said provisions. A statutory duty must be performed by the person directed by the legislature and consequently it must follow that there was total violation of Section 55 of the Act and prejudice was caused to the appellant.

Another fact highlighted is that no public witness as such has been joined. More often than once, it has been recorded which requires no repetition that it is not a rule of law but of prudence that public witnesses should be joined. This is insisted so as to lend authenticity and credibility to the search and recovery that are effected. It is of course not an absolute rule and facts of each case have been appreciated and scrutinized on its own merits. If in a given case witnesses are not available from the public, it would be a folly to insist that the same should have been joined. As a normal rule an attempt should be made to join the public witnesses.

In the present case no such public witness admittedly has been joined. It is in evidence that the appellant had been apprehended at 4.30 p.m. Keeping in view the suspicion against him, the Deputy Superintendent of Police was sent for. He reached there at 5.10 p.m. It is somewhat strange that despite such a long lapse of time, still no public witness was joined. Merely stating that few passersby had come but refused to join as witnesses in the peculiar fact, therefore, is not convincing explanation. In fact Constable Azad Singh is alleged to have been sent to fetch the weights and the scales. That was a proper time to even call for a public reliable witness. Nothing in this direction had been done. Therefore, in the peculiar facts of the present case, the recovery becomes suspicious. The appellant is entitled to the benefit of doubt.

For these reasons, the judgment and the order of sentence are set aside. The appeal is accepted. The appellant is acquitted giving him the benefit of doubt. He be released forthwith if not required in any other case.