Ravinder Singh vs State of Punjab

Sat Pal, J.—This appeal is directed against the judgment dated 8th May, 1996, passed by the Additional Sessions Judge, Amritsar in Sessions Case No. 61 of 1993. By this judgment, the learned Additional Sessions Judge has convicted the appellant u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the NDPS Act) and has sentenced him to undergo R.I. for period of 12 years and to pay a fine of Rs. 1 lacs. In default of payment of fine, the appellant has been ordered to undergo further R.I. for two years.

Briefly stated, the case of the prosecution is that on 7th June, 1993, a Police party headed by S.I. Teg Bahadur Singh P.S. Madhu, District Ferozepore while on patrol duty in the area of Bikhiwitid received secret information that Ravinder Singh (appellant herein) was selling poppy husk in a huge quantity at the Behak of one Bagicha Singh. On receipt of this information, S.I. Balkar Singh and other Police Officials of the CIA staff were also joined in the party and on the basis of rugga Exhibit PD, formal FIR Exhibit PD/1 was registered at the above mentioned police station. It is further the case of the prosecution that the police tried to join public witnesses from village Baler but nobody joined. The police party raided the Behak of Bagicha Singh where the appellant was found present with 20 bags of poppy husk. The appellant was given the option whether he would like to be searched before a Gazetted Officer or a Magistrate but he reposed confidence in the Investigating Officer, and then as a result of the search, 19 bags containing 40 kgs. poppy husk each and one bag containing 20 kgs. poppy husk were found in the said Behak. It is further alleged that 250 gms. poppy husk was taken as a sample from each bag and then all the samples and the remaining poppy husk in the bags were separately sealed with seal mark ''TS'' and taken into possession vide Memo Exhibit PB and the seal after use was handed over to HC Shamir Singh. The rough site plan Exhibit PC of the place of recovery was prepared and the appellant was informed about the grounds of his arrest. The case property was deposited with MHC Parkash Singh with seals intact. It is further alleged that on 8th June, 1993, the appellant and the case property were produced before the Ilaqa Magistrate vide application Exhibit PC and thereafter, it was redeposited with the MHC. Samples were sent to the office of the Chemical Examiner and as per report of the Chemical Examiner Exhibit PF, the contents of the samples were found to be of poppy husk. Accordingly, the appellant was challaned u/s 15 of the NDPS Act.

The prosecution examined five witnesses. P.W. 1 Constable Harjinder Singh had taken 20 samples of poppy husk from MHC for depositing the same in the office of the Chemical Examiner. P.W. 2 Shamir Singh ASI was one of the members of the raiding party. P.W. 3 Parkash Singh was the MHC at the relevant time. P.W. 4 Baldev Singh SI had produced the appellant-accused before the Ilaqa Magistrate along with the case property on 8th June, 1993. PW 5 Teg Bahadur Singh, SHO PS Makhu was the I.O. in this case.

Thereafter the appellant was examined u/s 313, Cr. P.C. and in his statement, he denied all the allegations of the prosecution witnesses and pleaded that he had been falsely implicated. The appellant did not lead any evidence in defence. The learned Additional Sessions Judge, on the basis of the evidence produced by the prosecution, convicted the appellant u/s 15 of the NDPS Act for having been found in possession of 20 bags of poppy husk without any permit and sentenced him to undergo RI for a period of 12 years and to pay a fine of Rs. 1 lac; in default of payment of fine, to undergo further R.I. for two years.

Mr. Bhasaur, learned counsel appearing on behalf of the appellant, submitted that there was substantial delay in the delivery of the special report to the Ilaqa Magistrate. He submitted that FIR Exhibit PD/1 was recorded at the Police Station at 5-45 p.m. on 7th June, 1993, but the special report reached the Ilaqa Magistrate at 11 a.m. on 8th June, 1993. He submitted that no explanation whatsoever has been given by the prosecution with regard to the substantial delay in delivering the special report to the Ilaqa Magistrate. He, therefore, contended that this delay itself showed that the appellant had been falsely implicated.

The learned counsel further submitted that the conscious possession of the appellant with regard to the alleged recovery of 20 bags from Behak of Bagicha Singh has not been proved at all by the prosecution, particularly when admittedly this Behak belongs to Bagicha Singh. In this connection, he drew our attention to the rough site plan Exhibit PE and submitted that as per this site plan, the Behak of Bagicha Singh consisted of one big room and 2 small rooms. He further submitted that as per this plan, the poppy husk was found in the room marked B whereas the appellant was found in the big room marked ''A''. He further submitted that the owner of Behak, Bagicha Singh was neither apprehended nor investigated. He also submitted that even as per the case of the prosecution, the appellant was not found with any weighing scales or any kind of weights though as per the secret report the appellant was allegedly selling poppy husk in a large quantity. He, therefore, contended that it cannot be said that the recovery of the poppy husk was effected from the appellant. In support of this contention, he placed reliance on a judgment of this Court in Sees v. State of Punjab (1995) 3 RCR 16.

The learned counsel further submitted that the link evidence in this case was missing as the sample seal was not deposited with the MHC. He also submitted that there is no entry in register 19 regarding deposit of the sample seal. He also submitted that the case property in fact was not produced before the Ilaqa Magistrate. He, therefore, contended that there was violation of Section 55 of the NDPS Act. In support of this contention, He placed reliance on the following judgments:

(1) Gopi Ram v. State of Punjab (1994) 2 RCR 355 (Punj. and Har);

(2) Ghanshyam v. State (Delhi Admn.) (1994) 2 RCR 508 (Delhi);

(3) Atma Singh v. State of Punjab (1995) 3 RCR 461 (Punj and Har).

The learned counsel also submitted that no independent witness was associated though the raid was conducted after the receipt of secret information and the area of Bikhiwind is thickly populated. He further submitted that even the names of the persons who according to the I.O. refused to join the raiding party, have not been mentioned. He, therefore, contended that these facts create suspicion in the case of the prosecution. In support of this submission, he placed reliance on a judgment in State of Punjab Vs. Balbir Singh, .

The learned counsel further submitted that there was violation of Section 50 of the Act as the alleged option to be searched before Gazetted Officer or a Magistrate was not given in writing.

Lastly, the learned counsel contended that even the affidavit of Constable Harjinder Singh, Exhibit PA was not properly verified and as such the statement of this witness could not be read into evidence. In support of this submission, he placed reliance on a judgment of this Court in the case of Gopi Ram 1994 (2) RCR 355 (supra).

Mr. Dhaliwal, learned Deputy Advocate General, submitted that there was no provision in the NDPS Act that the special report should be delivered to the Ilaqa Magistrate immediately after the registration of the FIR. He submitted that under the provisions of this Act, only higher officer is to be informed. The learned counsel further submitted that in the present case Section 50 of the NDPS Act is also not strictly applicable as the poppy husk was recovered as a result of the search of the house and not as a result of the personal search of his person.

Reading non-entry in the Register No. 19 about the sample seal, the learned Deputy Advocate General submitted that as per evidence on the record, the seal was given to AS1 Shamir Singh and not deposited in the Malkhana. He further submitted that in any case the sample seal of TS was affixed on Form No. 29 which was sent to the Chemical Examiner along with the samples and as per the report of the Chemical Examiner on the reverse side of form No. 29, the seals on the samples were intact and agreed with the sample seal.

As regards the defect in the verification of affidavitof Constable I Harjinder Singh, the learned counsel submitted that it was a minor irregularity and as such it should be ignored. The learned counsel further submitted that there was conscious possession of the poppy husk with the appellant as the appellant was found at the Behak of Bagicha Singh where the poppy husk was found.

In reply to the arguments submitted by the learned counsel for the State, Shri Bhasaur learned counsel for the appellant submitted that Section 50 of the NDPS Act was applicable even if poppy husk was found as a result of the search of the house. In support of this submission, he placed reliance on a judgment of the Supreme Court in Mohinder Kumar Vs. The State, Panaji, Goa, .

We have given our careful consideration to the submissions made by the learned counsel for the parties and have perused the records. The learned Additional Sessions Judge has convicted the appellant on the following grounds :

(i) In the present case it is proved beyond doubt that there was no residential house around the place of recovery and therefore the non-joining of the independent witness is not material. The argument of the learned defence counsel that Section 50 of the NDPS Act has not been complied with carries no weight;

(ii) There was a compliance of Section 55 of the NDPS Act also because PW 5 SI Teg Bahadur Singh had proved that on 8-6-1993 the accused was produced before the Ilaqa Magistrate along with the case property vide application Exhibit PC;

(iii) when the police party raided the Behak of Bagicha Singh, accused was found present there along with 20 bags of poppy husk and it is not the case of the accused that these bags belonged to Bagicha Singh or some other person. The accused has also not given any explanation as to how he happened to be present at that Behak of Bagicha Singh when he belongs to Ferozepur. It appears that he had come to that place with the gunny bags in order to sell the poppy husk. This fact establishes his conscious possession over the bags containing poppy husk.

(iv) Non-entry in register No. 19 regarding the deposit of the sample -- seal or despatch of the case property on 8-6-1993 for its production before the Magistrate is only an irregularity committed by the police officials as it is proved from the judicial record that the case property and the accused were produced before the llaqa Magistrate on 8-6-1993 vide application Exhibit PC.

(v) From the evidence of Parkash Singh MHC and from the affidavits of the formal witnesses and report of the Chemical Examiner, it stands proved that the samples remained intact till they were analysed by the Chemical Examiner and fromchemical analysis they were found tocontain poppy husk. The seals of the samples were intact and agreed with the sample of the seal and therefore there was no possibility of tampering with the samples. Thus the linkevidence is totally complete.

The rough site plan Exhibit PE which was prepared by the I.O. on the spot shows that the Behak belonged to one Bagicha Singh and it contained two built up rooms with doors. The poppy husk was recovered from the room marked ''B'' which had a separate door and the appellant was found at the place marked ''A'' which is situated in the portion other than the said two rooms. From this site plan, it is clear that the appellant was not found in the room where the bags containing poppy husk were lying. It is not disputed that the said Behak including the room where the bags containing the poppy husk were lying, belongs to one Bagicha Singh but said Bagicha Singh was not apprehended by the Police. P.W. 2, Shamir Singh, ASI in his cross-examination has stated that the Police could not trace out Bagicha Singh though efforts were made to trace him out after the recovery of the bags. He, however could not tell the name of any person from whom inquiries were made about the whereabouts of Bagicha Singh. P.W. 5 S.I. Teg Bahadur Singh, however, stated in his cross-examination that after the recovery the Police did not raid the house of Bagicha Singh. He further stated that the gunny bags of poppy husk were lying in the room which was not locked. Therefore, it becomes clear that the room from where the bags containing poppy husk were recovered belonged to one Bagicha Singh but the police did not raid his house. From these facts, it cannot be said that Ravinder Singh was having conscious possession of the bags containing poppy husk recovered by the Police in this case. We are, therefore, unable to agree with the learned trial Court that the conscious possession of the bags containing poppy husk of accused Ravinder Singh has been established. The reason given by the learned trial Court that the accused has not given any explanation as to how he happened to be present in the Behak of Bagicha Singh and from this, his conscious possession is established, is not valid. It was for the prosecution to prove that the accused was in exclusive possession of the bags containing the poppy husk which were recovered from the Behak of Bagicha Singh but as stated herein above, the prosecution has failed to prove the same. Here reference may be made to a judgment of this Court in the case of Sees 1995 (3) RCR 16 (supra) wherein it was held that the exclusive possession of the accused of the articles recovered is required to be proved by the prosecution.

Even the compliance of Section 50 of the NDPS Act in this case appears to be doubtful. PW. 2 Shamir Singh, in his cross-examination, admitted that the statement of the accused for reposing confidence in the I.O. was not recorded. In the absence of the written statement of the accused with regard to the option to be searched before a Magistrate or a Gazetted Officer, the evidence of the two police officers who are eye-witnesses has to be scanned minutely. P.W. 2, Shamir Singh, ASI, in his statement, has stated that the accused "was asked by the SHO that his person was to be searched and in case he wanted he could be produced before G.O. or a Magistrate but the accused reposed confidence in S.I. Teg Bahadur Singh and wanted him to search his person." But PW 5, S.I. Teg Bahadur Singh, in his statement, has stated that the accused was told that "there was supicion of the availability of the poppy husk in the Behak and that the same was to be searched. He was further told that in case he wanted the calling of any G.O. or a Magistrate he could be summoned but he reposed confidence in the I.O." From these two statements, we find that there is a discrepancy on material points. Whereas one Police Officer (PW 2) has stated that he was told that his person was to be searched but the other police officer (PW 5) has stated that he was told that the Behak was to be searched. In view of this material discrepancy, we are of the considered view that the prosecution has failed to prove that Section 50 of the NDPS Act was complied with.

We also do not find any merit raised by the learned counsel for the State that the provisions of Section 50 of the Act are not applicable to the facts of the present case as the recovery was made from the house and not from the appellant. In this connection, reference may be made to the judgment of the Supreme Court in the case of Mohinder Kumar Vs. The State, Panaji, Goa, wherein it was held by the Hon''ble Supreme Court that the provisions of Section 50 of the Act are mandatory and are applicable to a case of search from the house as well.

Another point which creates suspicion about the prosecution story, is that the prosecution has failed to prove that, the sample seal of the SHO was deposited in the Maikhana. In this connection, reference may be made to the statement of MHC Parkash Singh, who in his cross-examination, admitted that in Register No. 19 there is entry No. 21 dated 7th June, 1993 which shows that SI Teg Bahadur Singh had deposited the case property in the Malkhana and also lodged the accused in the lock up but there is no mention that the sample seal had been deposited. He further stated that there is entry at Serial No. 54 in Register No. 19 and in this entry also there is no mention about the deposit of the sample seal. These facts also show that there was a violation of Section 55 of the NDPS Act in this case.

In view of the reasons recorded herein above, we allow the appeal and set aside the impugned judghment dated 8th May, 1996 of conviction and sentence, passed by the learned Additional Sessions Judge, and acquit the appellant of the charge levelled against him. He will be set at liberty forthwith unless required in any other matter.