Raghbir Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed by Raghbir Singh, and has been directed against the judgment and order dated 20.11.1998 passed by the Court of Additional Sessions Judge, Ludhiana, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; and in default of payment of fine, the appellant was directed to undergo R.I. for six months.

The brief facts of the case are that on 14.12.1995 SI Sakattar Singh along with other police employees including SI Shavinder Singh was holding a nakabandi on the bridge of the canal minor in the area of village Khatra Choharam at about 11.15 A.M. The appellant came from the side of village Bhikhi Khatra. He tried to slip away on seeing the police party. However, on the basis of suspicion, he was apprehended. At that time, on the carrier of his bicycle an attachecase was tied. He was asked that the attachecase was to be searched on suspicion and in case he so desires, some gazetted police officer or Magistrate could be called. The accused, however, reposed confidence in the police party. His statement was recorded. Unfortunately, for the prosecution, it has not been attested by any independent witness and this part of the case I shall deal in the subsequent portion of this judgment because the counsel for the appellant has built his argument on this aspect of the case alone. Continuing with the facts, the attachecase, which was kept on the carrier of the bicycle was searched by the members of the police party at their own level and on search, it was found that the same contained opium wrapped in a glazed paper. On weighing, it came to 3 kgs 500 grams. The I.O. separated two samples of 10 grams of opium and made a sealed parcel thereof. The remaining opium and the samples were separately sealed with the seal bearing inscription `SS''. The entire case property was taken into possession. Accused could not produce any licence or permit for the possession of opium. Resultantly, a ruqa was sent to the police station for the registration of the case, on the basis of which formal FIR was recorded. On return to the police station, the entire case property and the accused were produced before the SHO, who resealed the case property with his own seal and deposited the case property with the MHC. The sample was sent to the office of the Chemical Examiner who found the contents as opium.

On the completion of the investigation of the case, the appellant was challaned in the court of the Area Magistrate, who supplied the copies of the documents free of cost as required under the law and vide commitment order dated 30.3.1996 committed the accused to the court of sessions.

Vide orders dated 7.5.1996, a specific charge under Section 18 of the Act was framed against the appellant on the allegations that on 14.12.1995, in the area of village Khatra, he was found in possession of 5 kgs of opium, without any valid licence or permit and thereby he committed the offence under Section 18 of the Act. This charge was later on amended on 23.7.1997 and the correct charge was framed against the appellant. The original charge and the amended charge were read over and explained to the accused, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined SI Shavinder Singh, PW1, SI Sakattar Singh, I.O., P.W2, Constable Surjit Singh, PW3, HC Joginder Singh, PW4 and Kundan Singh, Ahlmad, PW5. Finally, the prosecution tendered into evidence the report of the Chemical Examiner, Ex. PZ, and closed the case.

On the closure of the prosecution evidence, the 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 appellant. The appellant denied those circumstances and stated as follows :

"I am innocent. I used to reside since 1984 in the house of Gurdev Singh who is retired constable and there is a party faction in the village. Sarpanch of village Dehlon is inimical towards Gurdev Singh and DSP Guron was close to Sarpanch of village Dehlon and at the instance of Sarpanch Parvinder Singh I have been falsely implicated. And I was taken away by the police on 31.10.1995 and falsely implicated in a case on 14.12.1995. I have also been implicated in a false case under Sections 420/467/468 etc. IPC of P.S. Dehlon and I was taken away by the police on 4.11.1995 and was falsely implicated."

When called upon to enter defence, the appellant examined Jagsir Singh, DW1 and Parminder Kaur, DW2.

The learned trial Court, however, relied the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri S.S. Rana, Advocate, on behalf of the appellant and Shri S.S. Randhawa, DAG, Punjab, appearing on behalf of the State, and with their assistance have gone through the record of this case.

The solitary argument, which is full of substance, raised by the counsel for the appellant is that s. 50 of the Act has not been complied with in this case in proper manner. The learned counsel for the appellant submitted that there was ample opportunity on the part of the I.O. to associate an independent witness and in spite of that, he has not availed the services of any independent witness to lend credence to the consent statement, Ex. PA, of the accused.

There is merit in the contention raised by the counsel for the appellant. Section 50 of the Act has been introduced into the Act in order of protect the rights of the accused zealously. It is a very valuable right and cannot be brushed aside in a casual manner. When the accused makes a statement before the I.O. that he does not want to be searched in the presence of a gazetted officer or a Magistrate, and that he reposes confidence in the police party, in such a situation, it is obligatory on the part of the I.O. to get an independent attestation to the statement of the accused, otherwise, it will be very harsh upon the accused if we totally depend upon the statement of the I.O. The things may be otherwise if the I.O. was not in a position to associate an independent witness. Once, he had the ample opportunity to do so, in such a situation, he should have adopted all the means so as to exclude all possible chances of false implication. It has been admitted by the S.I. Sakattar Singh in the crossexamination as follows :

"It is correct that there is a bus sand and Senior Secondary School is near the plea of recovery. No body was called from there to witness the recovery. We remained at the place of recovery till 4.00 in the evening. The weights and scale were brought from V. Rara Sahib through Gurmail Singh PHG. He was not directed to bring independent witness from Rara Sahib."

The above admission on the part of the I.O. would show that he had the ample opportunity to associate independent witness; firstly, because the recovery has been effected from a public thorough fare, secondly, there was a Bus Stand near the place of recovery, and, thirdly, the I.O. deputed a Constable to go to village Rara Sahib in order to bring scales and weight. The Constable could have been directed to bring Lambardar, Sarpanch, Member Panchayat or Chowkidar or any other respectable from the village so as to lend confidence in the mind of the court about the genuineness of the recovery. When the provisions of section 50 of the Act have not been complied with in a proper manner, the search and seizure becomes illegal.

It has been held in State of Punjab v. Om Parkash, 1996(3) RCR 145 in para 5 as follows :

"5. The Investigating Officer (P.W.2) did not state in his evidence that he informed the accused of the grounds of arrest or that he sent intimation to the superior officer about the arrest of the accused. By failing to do so, the investigation agency has failed to comply with the provisions of Sections 52 and 57 of the N.D.P.S. Act. Of course, the provisions of both sections 52 and 57 of the said Act are not mandatory, and the accused will have to establish prejudice to earn acquittal. When the investigating officer does not send a report immediately to the superiors, then the accused loses an opportunity to bring forth before the court the material, namely, the report to be sent by the investigating agency to the superior officer, so that the court can crosscheck and find out whether the allegations in the FIR and the evidence put forth before the Court are true. To that extent there will be prejudice to the accused. But whatever it is, the prosecution has to fail on the sole ground that there was no compliance with the provisions of section 50 of the Act in view of the Division Bench decision of this Court in Amrit Singh v. State of Haryana, 1990(2) RCR 525. It was held in that case as follows :

"To give meaning and content to the clear legislative intent underlying the safeguard provided by S. 50 of the Act, cogent and reliable evidence and not merely the statement of a Police Officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a gazetted officer or Magistrate, but he chose to decline this offer. In Sudarshan Kumar''s case, 1989(2) Chandigarh Law Reporter 75 (supra), it has no doubt been suggested that such offer should be made before two reliable and independent witnesses, but with respect, it would be appropriate and more on consonance with the interests of justice that as a rule of general practice, the person apprehended should be taken before a gazetted officer or Magistrate and searched in his presence. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Search otherwise than before a gazetted officer or Magistrate should, therefore, be the exception and that too for sound and convincing reasons founded upon reliable material on record, the onus of showing that the person to be searched declined such option being upon the prosecution."

So, on this short ground that the provisions of section 50 of the Act have no been effectively complied with, the prosecution has to fail. The prosecution cannot, by simply producing a memo, that too alleged to have been got from an illiterate person, and without associating an independent witness, be heard to say that the accused reposed confidence in the investigating agency and agreed to be searched by the investigating officer. So, we find no ground to interfere with the judgment of the trial Court."

This view has also been followed in Randhir Singh v. State of Haryana, 1999(1) RCR(Criminal) 734 and State of Punjab v. Bhola Singh, 1998(3) RCR(Criminal) 717.

The learned State counsel has, however, contended that even if no independent witness has been associated, still conviction can be based on the testimony of the police officials.

I partly accept the contention of the learned State counsel that conviction can be based on the testimony of the police officials but here is a case of noncompliance of procedure. Section 50 of the Act is mandatory as held in State of Punjab v. Balbir Singh, 1994(1) RCR 736 . When a procedure has not been complied with in a proper manner, the seizure and the recovery will become illegal. In this case, the mandatory provisions of section 50 of the Act have not been complied with in a proper manner.

Resultantly, I accept this appeal, set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to the rules. The information regarding the acceptance of this appeal be sent to the Superintendent, Central Jail, Ludhiana, so that the appellant should be set at large forthwith, if not required in any other case.

A copy of this judgment be sent to the Director General of Police, Punjab, to bring it his notice that the I.Os. should be given sufficient knowledge about the procedure and the latest trend of the case law so that the cases, like the case in hand, should not fail for want of compliance of proper procedure.