Rajinder Kumar vs State of Punjab

A.S. Nehra, J.

This appeal is directed against the judgment and order dated December 6, 1994, passed by the Additional Sessions Judge, Amritsar, by which Rajinder Kumar, appellant, has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/ and in default of payment of fine, to undergo further rigorous imprisonment for one year.

Prosecution case, briefly stated, is that on January 29, 1992, ASI Surjit Singh, Incharge Police Post Gate Hakiman, Amritsar, alongwith HC Baldev Singh, Constable Ravinder Singh and other police officials was going in an official jeep driven by HC Hira Singh towards grain market in connection with patrolling and apprehension of bad elements. When the police party was a little distance short of the railway crossing near the Grain Market, the accused was seen coming from the side of village Himmatpura, who on seeing the police party became nervous and tried to slip away. On suspicion, he was apprehended by the police. ASI Surjit Singh told the accused that he wanted to conduct search of his person and, if so desired, he could get himself searched in the presence of a Magistrate or a Gazetted Officer. The accused, however, expressed his faith in his search by ASI Surjit Singh, who accordingly searched the person of the accused and recovered 20 Gms. of Charas wrapped in glazed paper from the right pocket of his pant. Out of it, 5 Gms. were separated as sample and both sample and the remaining quantity of Charas, were made into two separate parcels, sealed with seal bearing inscription ''SS'' and taken into possession vide recovery memo, Ex. PC, attested by HC Baldev Singh and Constable Ravinder Singh. The seal after use was handed over to HC Baldev Singh. Thereafter ASI Surjit Singh sent ruqa, Ex. PD, to the Police Station; on the basis of which formal FIR, Ex. PD/1, was recorded against the accused by S.I. Harbans Singh. The ASI also prepared rough site plan, Ex. PE, of the place of recovery with correct marginal notes, arrested the accused, recorded the statements of the prosecution witnesses and, on return to the Police Station, produced the accused and the case property with seals intact before Raj Pal Singh, SHO who, after verification, affixed his seal bearing impression ''RPS'' on both the sealed parcels and deposited those with MHC Sucha Singh. After completion of investigation and receipt of report of Chemical Examiner, Ex. PF, the accused was challaned to face trial for an offence under Section 20 of the Act.

Prosecution, to prove its case, examined PW 1 Head Constable Baldev Singh, PW 2 ASI Surjit Singh and tendered in evidence affidavits, Exhibits PA and PB, of Constable Jagat Singh and MHC Sucha Singh and report of Chemical Examiner, Ex. PF.

PW 1 HC Baldev Singh stated that on January 29, 1992, he had joined the police party headed by ASI Surjit Singh and including other police officials; that they were going for patrolling towards Gate Bhagranwala from the side of Gate Hakiman and when the police party reached near railway crossing of Grain Market, Amritsar, the accused was seen coming on foot from the opposite direction i.e. from the side of village Himmatpura who, on seeing the police party, tried to turn back but he was apprehended by ASI Surjit Singh with their assistance. He further stated that the ASI had asked the accused that he suspected him to be in possession of some contraband and accordingly, his person was to be searched, and in case he so desired, he could be produced before a Gazetted Officer or a Magistrate. The accused declined the offer and instead reposed his confidence in the police. The witness further stated that thereafter the personal search of the accused by ASI Surjit Singh led to recovery of 20 grams of Charas wrapped in a glazed paper from the right pocket of his pant. Out of that 5 grams were taken out as a sample and put in any empty match box and the remaining Charas was put in separate dabbi tin and made into sealed parcel, Ex. P1. The sample and parcel, Ex. P1, were separately sealed at the spot with the seal bearing impression ''SS'' by ASI Surjit Singh and the same were taken into possession vide recovery memo, Ex. PC, attested by him and Constable Ravinder Singh and that the seal after use was handed over to him.

PW 2 ASI Surjit Singh in his statement before the trial Court fully corroborated the testimony of PW 1 HC Baldev Singh. He further stated that he had sent ruqa, Ex. PD, to the Police Station for registration of the case against the accused; on the basis of which formal FIR, Ex. PD/1, was recorded by SI Harbans Singh whose signatures he identified. Thereafter, he prepared rough site plan, Ex. PE of the place of recovery with correct marginal notes, arrested the accused, recorded the statements of the witnesses and on return to the Police Station, produced the accused and the case property with seals intact before Raj Pal Singh, SHO, who after verification, affixed his seal bearing impression ''RPS'' on both the sealed parcels and, in his presence, deposited the case property with seals intact with MHC Sucha Singh.

When examined under Section 313, Criminal Procedure Code, the appellant denied the prosecution allegations in toto and pleaded his innocence and false implication. He, however, did not adduce any evidence in his defence.

Learned counsel for the appellant contended that ASI Surjit Singh (PW 2) had not recorded the statement of the appellant to the effect that he had reposed confidence in the ASI for conducting his personal search and, therefore, the mandatory provisions of Section 50 of the Act had been violated and, as such, the appellant was entitled to be acquitted.

Mr. Parminder Singh, Assistant Advocate General, Punjab, appearing for the State, contended that according to the testimony of HC Baldev Singh (PW 1) and ASI Surjit Singh (PW 2), the appellant was apprehended on suspicion. ASI Surjit Singh had asked the appellant that he wanted to conduct his personal search and that he had a right to get his person searched in the presence of a Magistrate or a Gazetted Officer, but the appellant told the ASI that he could search his person. To the same effect is the statement of PW 1 HC Baldev Singh. The appellant reposed confidence in ASI Surjit Singh (PW2) and thereafter ASI had conducted the personal search of the appellant. Mr. Parminder Singh further contended that there was no mandate or requirement of Section 50 of the Act that the offer given by the ASI ought or must have been reduced in writing. In support of this argument, he relied upon a Division Bench decision of this Court in Roop Singh v. State of Punjab, 1996(1) RCR 146.

After hearing the learned counsel for the appellant and the State counsel, I find no force in the contention raised on behalf of the appellant. The appellant was given option to be searched before a Magistrate or a Gazetted Officer by ASI Surjit Singh (PW 2) and there is no mandate or requirement of Section 50 of the Act that the said offer to the appellant ought or must have been reduced in writing. On this point, I am supported by a Division Bench decision of this Court in Roop Singh''s case (supra).

In view of the discussion, there is no merit in this appeal and the same is dismissed.