Ram Singh vs State of Haryana

R.L. Anand, J.

This is a Criminal Appeal and it has been directed against the judgment dated 17.4.1996 and order dated 18.4.1996 vide which the appellant Shri Ram Singh was convicted under Section 15 of the N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs. on lakh; and in default of payment of fine, to undergo further rigorous imprisonment for two and a half years.

The brief facts of the case are that on 16th June, 1993 ASI Dilbagh Singh along with other police officials of Police Station Loharu were present near Railway Station Loharu and they took the services of one Mehar Chand and he was directed to be present there. When the head of the police party was talking to him, at about 5.30 p.m., the appellant came there from the side of the railway station. He was carrying a bag containing something. On seeing the police party, the appellant tried to take a turn back, but on the basis of suspicion he was apprehended. As per the story of the prosecution as contained in Ruqa Ex. PC., ASI Dilbagh Singh told the appellant that the former had the suspicion that the bag contained some narcotic drugs. The Investigating Officer, however, did not ask the appellant whether he wanted to be searched in the presence of a Gazetted Officer or Magistrate. Rather, the Investigating Officer took the accused and presented him before the Executive MagistratecumNaib Tehsildar. In the presence of Naib Tehsildar and Mehar Chand, PW, the search of the appellant''s bag was carried out and 25 Kgs. of poppy husk was found in it. A sample of 100 Kgs. (gms. ?) of poppy husk was taken out of it and the remainder was made in to a sealed parcel by using the seal of Head Constable Ashok Kumar bearing the inscription of `AK''. The seal after use was handed over to Mehar Chand PW. The case property was also taken into possession and was also sealed with the same seal bearing inscription `AK''. The case property was taken into possession vide Recovery Memo Ex. PA which was attested by the Naib Tehsildar besides other witnesses. Ruqa was sent to the Police Station Loharu for registration of the case on the basis of which formal FIR Ex. PC/1 was recorded. Later on, the accused and the case property was produced before the SHO Police Station Loharu, Amrik Singh who resealed the case property with his own seal and directed the Investigating Officer to keep the case property in safe custody with Moharrir Head Constable. The sealed sample of the poppy husk was sent to the Chemical Examiner who vide report Ex. PF declared the contents as chura of poppy husk. After completion of the investigation and recording of the statement of witnesses, the accused was challaned in the Court of Illaqa Magistrate, Ist Class Loharu and copy of the challan was supplied to the appellant as required by law and vide commitment (JUDGMENT) dated 12.5.1994 committed the appellant to the Court of Additional Sessions Judge, Bhiwani. Vide order dated 4.6.1994, the appellant was chargesheeted under Section 15 of the N.D.P.S. Act. The chargesheet was handed over to him and the charges were explained to the appellant. The appellant pleaded not guilty. The prosecution entered into evidence and examined Shri Randhir Singh Boora, Naib TehsildarcumExecutive Magistrate, PW. 1 and Dilbagh Singh SI, who appeared as P.W. 2. Prosecution also produced on record evidence of formal witnesses besides the report of the Chemical Examiner and the sworn affidavits of police officials etc. The accused was examined under Section 313 Cr.P.C. and the incriminating material was put to him. The accused denied the allegations of the prosecution and stated that a false case has been planted upon him. He further stated before the trial Court that one Mahender Singh was travelling in the bus, who had run away and the incriminating material might have been recovered from him. He took the stand that he was not carrying any poppy husk and was travelling in the bus in search of his brother who had been lost since long. He said that he had been falsely implicated in this case on false allegation. When called upon to enter his defence, the accused, however, did not lead evidence in defence. The trial Court relying upon the story of prosecution and the testimony of these two prime witnesses, rejected the defence. The appellant was convicted and sentenced in the manner stated above and accordingly the conviction order was passed. I have heard Ms. Gurminder Kaur, counsel on behalf of the appellant and the State counsel Shri Babbar Khan and with their assistance, have gone through the record of the cace.

The story of the prosecution has been assailed by learned counsel for the appellant mainly on two grounds : (i) that the mandatory provisions of Section 50 of the NDPS Act have not been complied with, and (ii) that the link evidence is missing. These are the two arguments which have been raised by the learned counsel for the appellant and which could not be successfully refuted by the learned State counsel though every effort has been made by him to support the judgment of the trial Court. Feeble arguments were also raised by learned counsel for the appellant that Shri Mehar Chand to whom the seal was handed over after use by the Investigating Officer has not been examined and that the affidavits tendered by the prosecution witnesses have not been sworn in a proper manner. It was also submitted by the learned counsel appearing on behalf of the appellant that the affidavits relied upon by the prosecution have not been put to the appellant and on these three grounds, the appellant is entitled to be acquitted. First of all, I would like to deal with those feeble arguments which have been raised by learned counsel for the appellant. By handing over the seal to the independent witness Shri Mehar Chand, the Investigating Officer has proved his bona fide. If, however, the witness is not prepared to come forward to give evidence, it is not the fault of the Investigating Officer. Had the Investigating Officer retained the seal with him, it could have been suggested with some force that the Investigating Officer wanted to keep everything with him. However, in the present case, the Investigating Officer has proved his bona fide when he handed over the seal of Shri Ashok Kumar to Mehar Chand, the only independent witness who was associated with the police party. Moreover, as per the report of the Chemical Examiner, he received the sample of poppy husk with seals intact and those seals tallied with the sample seal. As per section 133 Cr.P.C. only those circumstances are supposed to be put to the witnesses which are incriminating evidence of the prosecution. Affidavits are not incriminating circumstances. Incriminating evidence is the report of the Chemical Examiner which had come to the conclusion that the seal of the parcel containing is poppy husk and that the said report was put to the accused and he answered in affirmative. The affidavits in this case have also been duly sworn. The witnesses have sworn themselves true on the basis of their personal knowledge and this has been certified by the Magistrate who had read the contents of the affidavits to the witnesses. In these circumstances, I repel the second stand taken by the learned counsel for the appellant. So far as the argument that Section 50 of the N.D.P.S. Act has not been complied with is concerned, it has to prevail. A reasonable suspicion arose in the mind of the Investigating Officer when the appellant took a turn on seeing the police party. The suspicion that arose in his mind was that the appellant must be carrying some narcotic drugs in his bag and this suspicion is evident from the ruqa Ex. PC which was sent to the police station. In other words, the recovery has been effected under Section 43 subcluase (b) of N.D.P.S. Act and in these circumstances Section 50 of the N.D.P.S. act comes into play, which clearly enjoins the duty upon the Investigating Officer to apprise the person to be searched of his statutory right as to whether he wants to be searched in the presence of a Gazetted Officer or Magistrate. The Legislature has incorporated Section 50 of the NDPS Act for the benefit of the accused. If the Legislature has the intention that a particular Act should be complied in a particular manner, it has to be done in the very manner and in no other manner. The Investigating Officer was supposed to place all the cards before the person to be searched and it was for the person to be searched to pick up which card it suits to him. In the present case, a very novel method has been adopted by the Investigating Officer. Immediately after the apprehension of the appellant, he was taken to Shri Randhir Singh, P.W. 1 Naib TehsildarcumExecutive Magistrate. No notice was given to the appellant as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. So much so even the statement of the appellant has not been recorded by the Executive Magistrate. Faced with this difficulty, the learned State counsel states that the Executive Magistrate is a very responsible officer and if the strict provisions of Section 50 of the NDPS Act have not been complied with, this is not fatal to the prosecution as no prejudice has been caused to the appellant because his search has been taken in the presence of a Gazetted Officer and further, the Executive Magistrate or the Investigating Officer had no axe to grind against that appellant and, therefore, their statements should be believed with regard to recovery. I do not agree with the argument raised by the learned State counsel for the simple reason that these are the cases where the law has prescribed a particular procedure to the complied with before taking the search of the accused. If that procedure had been complied with in the prescribed manner, then the argument of the learned State counsel might be valid. But, in the present case, the statutory compliance of Section 50 which is mandatory in character has not been done, then the net result would be that the entire recovery and the trial would vitiate. It has been held by the Hon''ble Supreme Court in Saiyad Mohd. v. State of Gujarat, 1995(2) RCR 388 that it is imperative on the part of the officer to inform the accused of his right to be searched either before a Gazetted Officer or Magistrate and there should be cogent evidence to prove that the accused was made aware of such right and there is no question of drawing presumption under Section 114(e) of Evidence Act that requirement of Section 50 was complied with. In this case, no consent memo of the appellant had been prepared. It has also not been proved on the record that any Grounds of Arrest were supplied to the appellant and even the special report of this case was not sent to any higher authority so as to lend confidence in the mind of the Court about the genuineness of the recovery. In this view of the matter, this appeal is bound to succeed. To proceed further, the learned counsel on behalf of the appellant has rightly pointed out that the link evidence in this case is missing. According to the statement of the Investigating Officer, SI Dilbagh Singh, he handed over the case property with seals intact before SHO Amrik Singh who resealed the case property. Shy Shri Amrik Singh has not been examined by prosecution before the trial Court ? there is no satisfactory answer given to this question. It is imperative on the part of the prosecution to prove that the sanctity of the case property at no point of time has been disturbed or violated, meaning thereby that right from the stage of seizure of the incriminating material up to the stage of its receipt in the office of the Chemical Examiner, it is to be established by the prosecution evidence that the contents of the case property have not been tampered with. A vital link in this case has been broken by the prosecution when it has not examined Shri Amrik Singh, SHO Police Station Loharu and thus it can be said that there is a violation of the provisions of Section 55 of the N.D.P.S. Act. These vital aspects of the case have been ignored by the learned trial Court when it convicted and sentenced the appellant.

In view of the above discussion, this appeal succeeds. Resultantly, I allow this appeal and set aside the judgment and order passed by the trial Court and acquit the appellant of the charge framed against him. The case property stands confiscated. The intimation regarding acceptance of this appeal be sent to the Jail Authorities, Bhiwani so that the appellant be set at liberty forthwith, if not wanted or convicted in any other case. The appeal is allowed.