Pritam Singh vs State of Punjab

R.L. Anand, J.

By this judgment I dispose of two criminal appeals Nos. 508 SB of 1995 (Pritam Singh v. Punjab State) and 440SB of 1995 (Balwinder Singh and another v. State of Punjab) as in the opinion of this court, both the appeals can be disposed of by one judgment because both these appeals have arisen from one common judgment dated 13.7.1995 passed by the court of Addl. Sessions Judge, Barnala, who convicted the Pritam Singh and Jarnail Singh, appellants u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") while Balwinder Singh was convicted u/s 15 read with Section 25 of the Act. Vide order dated 18.7.1995, Pritam Singh was sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, he was further directed to undergo R.I. for 21/2 years. Balwinder Singh was sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, he was directed to undergo further R.I. for 21/2 years. This appellant was also sentenced to undergo R.I. for 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, he was again directed to undergo R.I. for 21/2 years. Similarly, Jarnail Singh, appellant was sentenced to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac each; in default of payment of fine, Jarnail Singh was directed to undergo R.I. for 21/2 years. The learned trial court further held that the substantive sentences awarded to Balwinder Singh shall run concurrently.

The brief facts of the case can be summarised in the following manner :

On 28.4.1994, police party headed by Harbhajan Singh, DSP, Mehal Kalan, held a picket at the bridge of canal minor within the revenue limits of Village Chhiniwal Kalan. In included SI Nachhattar Singh, SHO, Police Station, Mehal Kalan, ASI Nazar Singh and one Sardara Singh, besides the other members of the police party. At about 5.30 AM, one truck bearing registration No. PAT 8653 came from the side of Village Moom and the same was stopped as suspicion grew against the same. Appellant Pritam Singh was driving the truck at the relevant time while Balwinder Singh and Jarnail Singh, appellants, were sitting along with him. SI Nachhattar Singh, then, asked the three appellants that the truck was to be searched as he had suspicion about the same adding that DSP was with him. The appellants reposed confidence in him whereupon the SHO recorded their statements qua the above fact. Then, he searched the truck in the presence of DSP Harbhajan Singh and other persons present there and was able to recover 30 bags of Poppy Husk lying concealed underneath 100 bags of Khal in the truck. The SHO, then, drew two samples each weighing 250 grams out of each of the 30 bags of poppy husk and sealed the same with his own seal as well as the seal of the DSP. In the same manner, he also sealed the remaining bulk of the bags recovered. On weighing, each bag came to 38 Kgs. The S.I. also prepared the sample impression of his seal as well as that of the D.S.P. He took the sample parcels/bags with the remaining bulk in his possession vide a separate memo. He also took into possession the truck involved in the crime along with Tarpaulin and strings (rope). The SHO also took the personal search of the accused and took into possession the driving licence and currency notes of Rs. 20/ from Pritam Singh, appellant, vide a separate recovery memo. A sum of Rs. 40/ was recovered from Balwinder Singh and a sum of Rs. 15/ were recovered from Jarnail Singh. Accused could not produce any licence or permit for the possession of Poppy Husk. Resultantly, Ruqa was sent to the Police Station for the registration of the case. The I.O. also prepared the rough site plan of the place of recovery and recorded the statements of the witnesses u/s 161, Cr.P.C. and on return to the police station, the case property was handed over to the Moharrir Head Constable for safe custody with the seals intact. The samples of Poppy Husk were sent to the office of the Chemical Examiner, who declared the contents as Chura of the Poppy Husk.

On the completion of the investigation of the case, the appellants were challaned in the court of the Illaqa Magistrate, who supplied the copies of the documents to the appellants free of cost as required under the law and committed them to the Court of Sessions to face trial. Vide order dated 22.9.1994, the Addl. Sessions Judge, Barnala, framed the charge u/s 15 of the Act and against all the appellants and a specific charge u/s 25 of the Act against Balwinder Singh. The charges were read over and explained to the appellants, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined ASI Vas Dev, PW1, who deposed that on 28.4.1994, he was posted as Reader to S.S.P., Barnala. On that day, Constable Malkiat Singh had brought the special report of this case. On that day the SSP was Shri Jagdish Kumar. The signatures of the SSP were identified by this witness. In this manner he proved the special report of this case. PW2 Harbhajan Singh, DSP, deposed about the factum of recovery by stating that on 28.4.1994 at about 5.30 A.M. he held a picket at the bridge of the canal minor within the revenue limits of Village Chhiniwal Kalan. SHO Nachhattar Singh and others besides one Sardara Singh were also present with him and at about 5.30 A.M., one truck bearing registration No. PAT8653 came from the side of Village Moom. It was stopped. As per this witness, he had suspicion about the same. This witness further deposed that the truck was being driven by Pritam Singh while Balwinder Singh and Jarnail Singh were sitting along with him in the truck. It has been further testified by Harbhajan Singh that in his presence the SHO enquired from the accused that the truck was to be searched as he had the suspicion about the same. He further told the accused that the DSP was also with him. Upon this, the appellants told to Nachhattar Singh, SI, that he could search the truck as they had reposed confidence in him. Further, the SHO recorded the statements of each of the appellants vide Exs. PC, PD and PE, and, thereafter, the poppy husk lying in 30 bags, which were concealed underneath 100 bags of Khal were recovered. Harbhajan Singh also stated how the samples were drawn and how the case property was sealed and taken into possession. PW3 Nachhattar Singh deposed with regard to the detection of the truck by stating that it was stopped by him on suspicion and he told to the accused that he had the suspicion that something incriminating was in the truck and the same was to be searched. It has also come in the statement of Nachhattar Singh that if the appellants so wanted, the search could be taken in the presence of a gazetted officer or a Magistrate. The appellants were also informed that DSP Harbhajan Singh was also present with him. The accused reposed confidence in the DSP and their statements, Exs. PC, PD and PE were recorded. Those statements were read over and explained to the appellants to which they signed. PW Sardara Singh, the independent witness, who was in the Nakabandi party, was given up by the prosecution on 11.3.1995 as won over. The prosecution also tendered into evidence the report of the Chemical Examiner, Ex. PU, besides the affidavits of the formal witnesses and closed the case.

On the closure of the prosecution evidence, the statements of the accused were recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The appellants denied those circumstances and the plea of Pritam Singh was as follows :

"I am driver of Balwinder Singh on truck No. PAT8653. I had brought Khal from Bareli on 22.4.94 for delivery at Jagraon. The khal was in 175 bags. I had gone to the shop where delivery was to be given but the owners of that shop on seeing the khal did not take the delivery as according to them it was of substandard. I had booked through New Sutlej Good Carrier and a Bill was also by Hari Grading Company. Balwinder Singh belongs to Vill. Gharachon in Sangrur Distt. I was coming to Village Gharachon through Raikot where accused Jarnail Singh took a lift and when we reached Mehal Kalan there was a police Naka. They wanted some money from us and there was an altercation. The police took the truck and myself and Jarnail Singh to P.S. Mehal Kalan. Balwinder Singh was brought from Gharachon on seeing that there are 75 bags missing he quarrelled with SHO P.S. Mehal Kalan. Then all of us were beaten by the police and false case was planted against us.

The plea of Jarnail Singh, appellant, was as follows :

"I am innocent. I had taken a lift in the truck driven by Pritam Singh accused from Raikot to Barnala. The truck was intercepted at a police Naka at village Mehal Kalan. The police people demanded money from Pritam Singh on which an altercation took place. They took the truck alongwith us to P.S. Mehal Kalan. Some days after Balwinder Singh was brought from his village by the police alongwith two other persons. On his enquiry about missing bags of Khal from the SHO there was an altercation. Thereafter all of us were beaten by the police and falsely implicated in this case."

The plea of Balwinder Singh, appellant, can be described in the following manner :

"I am owner of truck No. PAT8653. On 27.4.94, I was in my village Gharachon at about 10 AM one Head Constable and 2 constables came in a Jeep and told me to come to the P.S. Mehal Kalan as my above said truck alongwith truck driver was detained there. I took with me Ujjaggar Singh and Harbant Singh from my village and we three went with police people to P.S. Mehal Kalan. I found 75 bags of Khal missing from the truck. An altercation took place between me and SHO. He beat me and my coaccused and falsely implicated us in this case. I had appeared in some case on 26.9.94 in the court of Sessions Judge, Sangrur."

When called upon to enter into their defence, the accused examined Constable Malkiat Singh, DW1, Ujjaggar Singh, DW2, Kapur Singh, DW3 and Vivek Kumar, DW4. The defence also placed on record the copy of the order dated 26.4.1994 as Ex.DD. Sardara Singh was also summoned as a defence witness but he was given up.

The learned trial court believed the prosecution story and rejected the defence version. The appellants were convicted and sentenced in the manner as stated above and aggrieved by their conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. R.S. Ghai, Sr. Advocate, appearing on behalf of Pritam Singh, appellant and Shri J.S. Brar, DAG, Punjab, who appeared on behalf of the State. The learned counsel who had filed the appeal on behalf of the other two appellants did not turn up. I have gone through the grounds of appeal of these two appellants besides the records of the trial court.

The story of the prosecution was assailed in the trial court from three angles: (i) that with the nonexamination of independent witness Sardara Singh, the alleged recovery of Poppy Husk becomes doubtful, (ii) that the mandatory provisions of Section 50 of the Act have not been complied with, and (iii) that the conscious possession of the incriminating article, i.e. Poppy Husk, had not been established from the evidence led by the prosecution. Some feeble arguments, such as link evidence is missing was also raised before the trial court but all the submissions raised before the learned trial Court did not find favour with the trial court resulting in conviction and sentence of the appellants.

Before me, Mr. Ghai has assailed the judgment of the trial court by making an endeavour for acquittal of all the three appellants by submitting that section 50 of the Act has not been complied with by the prosecution and, in these circumstances, the recovery of the alleged incriminating articles is doubtful and further the trial stands vitiated. In support of his contention, the learned counsel for the appellants has relied upon a judgment of the Hon''ble Supreme Court in Mohinder Kumar v. The State, Panaji, Goa, 1995(2) Recent CR 599 . In this citation, it was held by the Hon''ble Supreme Court that the mandatory provisions of Sections 42 and 50 of the Act are to be followed from the stage when the officer comes to believe that the accused persons were in presence (possession ?) of narcotic drugs. Reliance was also placed on the famous judgment in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 737 : 1994(3) SCC 299 . Incidently, this judgment was also taken note of by the Hon''ble Supreme Court in Mohinder Kumar''s case (supra).

Before I proceed further into the matter, I would like to incorporate in verbatim the ratio laid down by the Hon''ble Supreme Court in Balbir Singh''s case (supra), which reads as follows :

"After analysing the provisions of the Act, this court has stated that if a police officer, without prior information, makes a search and effect arrest of persons and if during such search he stumbles on a chance recovery of any narcotic drugs or psychotropic substance and if he happens to be a police officer who is not empowered under the Act to effect search and seizure he should inform the empowered officer as required by the Act. If he himself happens to be the empowered officer, then from that stage onwards the investigation must be carried out in accordance with the provisions of the Act."

I have considered the submission raised by the learned counsel for the appellants with the help of the record and I am of the considered opinion that his submission is devoid of any merit and similarly I am of the view that the citations relied upon by the learned counsel for the appellants are not applicable to the facts in hand. There is no quarrel with regard to the proposition of law that Section 50 of the Act is mandatory in character and if those provisions are not complied with, it will knock down the entire case of the prosecution. Before the benefit of Section 50 of the Act can be given to a person, it has to be seen first whether section 50 of the Act is applicable to the facts in hand or not and if those provisions are applicable to the facts, whether those have been complied with or not.

The learned counsel for the appellants submitted that giving of the opinion to the appellants clearly indicates that section 50 of the Act was supposed to be complied with by SHO Nachhattar Singh or by Harbhajan Singh, DSP. Since, there was no compliance of these provisions, therefore, the appellants are entitled to acquittal.

Section 50(1) of the Act lays down as follows :

"When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate."

Thus, a reading of the above provision, would show that section 50 would come into play only if the search of any person has been conducted u/ss 41, 42 or 43 of the Act. In these circumstances, it has become the paramount duty of this court to decide whether the present search falls u/s 41, 42 or 43 of the Act or not and, if so, what was supposed to be conceived by the I.O. before applying the provisions of Section 50 of the Act. After studying the relevant provisions of Sections 41, 42 and 43 of the Act, I am of the opinion that the present recovery has been effected u/s 43(1) of the Act. According to this section any officer of any of the departments mentioned in section 42 may (a) seize, in any public place or transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance;

(b) xx xx xx."

Thus, a bare reading of section 43(1)(a) of the Act would show that section 50 of the Act would come into play only if the Seizing Officer has conceived a reason to believe that the offence punishable under Chapter IV has been committed by the person to be searched. In other words, not every belief conceived by the I.O. would attract the provisions of section 50 of the Act. A small illustration can be given elucidating my point. A person on seeing an officer as mentioned in Section 42 of the Act becomes nervous. The officer arrests such person on the basis of suspicion but he does not conceive the belief that the person who became nervous was carrying on the trade in narcotic drugs or psychotropic substances punishable under Chapter IV of the Act. In these circumstances, section 50 of the Act, in the opinion of this court, would come into play. Of course, it is a question of fact to be decided in each and every case and presently I will try to show, after going through the relevant evidence of this case, that at no point of time Nachhattar Singh, SHO, or Harbhajan Singh, DSP, had conceived a reasonable ground to believe that the truck was carrying Poppy Husk or any narcotic drug. The police has multifarious duties to perform. A Sub Inspector has been authorised to investigate the offence under the Act. Supposing on I.O. conceives a belief that a person might be carrying a drug or any other incriminating article but short of narcotic drug or psychotropic substance, in that situation, the provisions of section 50 of the Act are not supposed to be complied with. In this situation, only the provisions contained in the Criminal Procedure Code would come into play. If the case of Mohinder Kumar is read between the lines, it has no application to the facts in hand, which I am now going to discuss.

The case of the prosecution was that there was a police party headed by DSP Harbhajan Singh. The police party was holding a Naka. There was no secret information with the DSP or Nachhattar Singh, SHO that a truck is coming with some psychotropic substance or narcotic drug. It was purely a chance recovery when the search of the truck was taken by Nachhattar Singh, SHO, in the presence of Harbhajan Singh, DSP. In these circumstances, my first answer is that section 50 of the Act does not come into play as even held by the Hon''ble Supreme Court in Balbir Singh''s case (supra). To supplement my above reasoning, I would like to quote the statements of Harbhajan Singh and Nachhattar Singh. The relevant statement of Harbhajan Singh reads as follows :

"At about 5.30 AM one truck bearing registration No. PAT8653 came from the side of village Moom. I stopped the truck as I had suspicion about the same. At that time truck was being driven by accused Pritam Singh while accused Balwinder Singh and Jarnail Singh were sitting along with him in the truck. They are now present in court as accused and I identify them. SHO Nachhattar Singh then asked them that the truck was to be searched as he had suspicion. He also told them that DSP was also with him. Accused then asked him that he could search the truck as they had reposed confidence in me. SHO had also recorded statements of the accused to said fact. Statement of accused Pritam Singh is Ex. PC while that of accused Balwinder Singh is Ex.PD whereas that of Jarnail Singh is Ex. PE which were attested by with witnesses and also by me."

The portion of the statement of Nachhattar Singh falling in the examinationinchief can be quoted in the following manner :

"The truck was stopped by me on suspicion. I told the accused that I have suspicion that something incriminating was in the truck and that the same was to be searched and if they so desired the search could take place in the presence of a G.O. or a Magistrate and I also told them that DSP Harbhajan Singh was present with me. They reposed confidence in DSP Harbhajan Singh and I then recorded statements Ex. PC, PD, Ex. PE of accused Pritam Singh, Balwinder Singh and Jarnail Singh respectively which were signed by accused and attested by PWs and the DSP."

Nachhattar Singh was tested during the course of crossexamination with regard to the nature of suspicion which he had conceived and the relevant statement of Nachhattar Singh is to the following effect :

"The truck was seen from a distance of 23 killas and its lights were not on at that time. It was not dark at that time. Truck was stopped by me. I had enquired about names of the accused before I told them that I wanted to search the truck, and if they wished the same could be done in the presence of DSP who was there at that time. I had told them that I had suspected some contraband article and did not tell that I suspected poppy husk in the truck."

The emphasis can be on the line "I did not tell that I suspected poppy husk in the truck." When Nachhattar Singh was never suspecting that the truck was carrying a narcotic drug which is an offence punishable under Chapter IV of the Act, the provisions of Section 50 of the Act, in these circumstances, do not come into play.

Even if it is assumed for the sake of arguments that section 50 of the Act is applicable, then, it has to be seen whether it has been complied with or not. It is the case of the prosecution that the DSP Harbhajan Singh was with the police party. Rather, he was heading the police party comprising of himself, Nachhattar Singh and others. Section 50 at the most gives a right to the person to be searched to give his option whether he wanted to give the search in the presence of a gazetted officer or a Magistrate. In the present case, the statement of each of the accused was recorded separately. Ex. PC is the statement of Pritam Singh. The question which was put to this accused was that some contraband appears to be lying in the truck and if Pritam Singh wanted to give the search given in the presence of a Gazetted Officer or a Magistrate. Upon this, Pritam Singh replied that he had full faith in DSP Harbhajan Singh and in his presence the search of the truck can be taken. Statement of Pritam Singh was read over and explained to him and he signed the same in the presence of Sardara Singh, Harbhajan Singh, DSP, ASI Nazar Singh and his statement was even attested by SI Nachhattar Singh. Similar are the statements of Balwinder Singh and Jarnail Singh. Though an effort was made by the learned counsel for the appellants to show that the statements of Pritam Singh, Balwinder Singh and Jarnail Singh have not been recorded at the spot, but I am not inclined to accept this contention simply on the ground that the shade of the ink of the ball point pen used by Pritam singh, Balwinder Singh and Jarnail Singh is slightly different from the one used for the purpose of recording the statements, Ex. PC, PD and PE. Thus, a reading of the statement, Ex. PC, would show that the accused exercised his option that the search of the truck can be taken in the presence of DSP Harbhajan Singh and the recovery memo indicates that the search was taken in his presence and poppy husk lying in 30 bags was found. In this manner, it can be safely held that section 50 of the Act has been complied with.

Faced with this difficulty, the counsel for the appellants submitted that the appellants were not made aware that they had also the right to be searched in the presence of any of the officers mentioned in section 42 of the Act. The argument does not carry any weight. When the appellants had already exercised the option that they can be searched in the presence of a Gazetted Officer of the Police department like Harbhajan Singh, DSP, in these circumstances, it was not obligatory on the part of Nachhattar Singh to call any other officer as mentioned in section 42 belonging to a different department. The object of section 50 is that before taking a search u/s 41, 42 or 43, of the Act, the association of a gazetted officer or a Magistrate should be made compulsory so as to infuse confidence in the mind of the court about the genuineness of the recovery. In order to achieve this object, the Legislature has also introduced other provisions regarding the supply of grounds of arrest, issuance of the special report to the higher authorities, handing over of the case property to the SHO of the nearest police station, so that the alleged recovery of the incriminating articles may not become doubtful and that there should be no chance for the I.O. to plant a false case upon the accused. In this case, the opinion has been given to each of the appellants. They exercised their option in favour of DSP Harbhajan Singh who was already present in the police party and the search was taken in his presence. DSP Harbhajan Singh has testified that fact. His statement fully stands corroborated from the statement of Nachhattar Singh. The nonexamination of Sardara Singh is not fatal to the prosecution so long as the testimony of DSP Harbhajan Singh inspires confidence in the mind of the court. In such like cases, the Legislature has already guarded the interest of the accused by making it mandatory upon the I.O. to take the assistance of a Gazetted Officer or a Magistrate. Nothing remains behind if the I.O. genuinely associates a Gazetted Officer or an Executive Magistrate as desired u/s 50 of the Act. The testimony of the so called independent witness whether joined or not, whether examined or not, cannot erase and supersede the statement of a Gazetted Officer. If, an independent witness in such like cases is not associated by the I.O., in the opinion of this court it is not fatal in all the cases when the I.O. has recorded the statements of the accused in the presence of the Gazetted Officer and in his presence the search has been taken as desired u/s 50 of the Act.

With regard to the recovery of the poppy husk, it stands duly corroborated by the statement of DSP Harbhajan Singh who had risen to the rank of Superintendent of Police when he gave his statement on oath on 11.3.1995 before the trial court. From the lengthy and touching crossexamination of DSP Harbhajan Singh and SI Nachhattar Singh, nothing has come out from which this court is in a position to come to the conclusion that some doubt has arisen with regard to the genuineness of the recovery.

In Dalip Singh v. State of Punjab, 1997(4) RCR(Criminal) 818 , it was held by a Division Bench of this Court that when the police had no prior information that the truck was carrying poppy husk, in that situation, the provisions of Section 50 of the Act are not attracted. The Hon''ble D.B. also took into consideration the entire case law on this aspect including Mohinder Kumar''s case (supra), on which reliance has been placed by the counsel for the appellants.

In Raj Kumar v. State of Haryana, 1997(2) Recent CR 798 , it was held that if the search has been conducted in the presence of an Additional Superintendent of Police (Gazetted Officer), it is due compliance of the provisions of Section 50 of the Act. In the present case, the search has been conducted in the presence of DSP Harbhajan Singh, who was a gazetted officer.

In the light of the above discussion, I do not find any merit in both the appeals and the same are hereby dismissed.

Appeals dismissed.