Sahab Singh alias Sabu vs State of Punjab

R.L. Anand, J.—This is a criminal appeal and has been directed against the judgment and order dated 11.5.1987 passed by the Additional Sessions Judge, Karnal, who convicted Appellant Sahab Singh alias Sabu u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. In default of payment of fine, the Appellant was further directed to undergo rigorous imprisonment for one year, for having been found in possession of 1 kilogram of opium on 10.3.1986 in the area of village Chaura, without any licence or permit.

Brief facts of the case are that on 10.3.1986, a police party headed by Sub-Inspector Darshan Kumar, Station House Officer, Police Station, Gharaunda, comprised of Head Constable Shiv Kumar was present on the bridge of Chhoti Yamuna, in the area of village Chaura, in connection with general patrolling, when Sahab Singh Appellant was seen coming from the side of river Yamuna and on seeing the police party the Appellant tried to retrace his steps. As a result suspicion arose in the mind of Sub-Inspector Darshan Kumar who apprehended the Appellant. Sub-Inspector Darshan Kumar then offered his search before conducting the search of the Appellant. Upon search of the Appellant opium was recovered which was lying wrapped in a glazed paper in a jhola. The opium was weighed and it came to 1 kilogram 10 grams opium was separated by way of sample and made into sealed parcel. The remaining opium was separately sealed and the entire case property was taken into possession vide recovery memo Ex. PA attested by Head Constable Shiv Ram and Constable Har Gian. Seal after use was handed over to Head Constable Shiv Kumar. Accused could not produce any iicence or permit for the opium and resultantly ruqa Ex. PB was sent to the Police Station for registration of the case, on the basis of which formal F.I.R. Ex. PB/1 was recorded by Sub- Inspector Gurdial Singh. Sub-Inspector Darshan Kumar then prepared rough site Ex. PC of the place of recovery. He recorded statements of the witnesses. The case property with seals intact was handed over to M.H.C. of the Police Station. Finally sealed parcel of the sample was sent to the office of the Chemical Examiner who vide report Ex. PD declared the contents as opium. On completion of the investigation of the case and after completing other formalities the Appellant was challaned in the Court of Ilaqa Magistrate who supplied copies of the documents to the accused and vide commitment order dated 18.9.86 committed the accused to the Court of Session.

The trial Court at the first instance framed erroneous charge on 8.10.1986 but later on this charge was amended on 20.1.1987. The charge was framed u/s 18 of the Narcotic Drugs and Psychotropic Substances Act which was read over and explained to the accused who pleaded not guilty and claimed trial.

In order to prove charge, prosecution examined Head Constable Shiv Kumar as P.W.I and Sub-Inspector Darshan Kumar appeared as P.W. 2. Head Constable Gurdeep Singh (P.W. 3) gave his statement on affidavit being of formal in nature. Similarly Constable Sukh Lal (P.W. 4) gave his statement by way of affidavit. Final report of the Chemical Examiner was tendered in evidence.

Statement of the accused was recorded u/s 313 Code of Criminal Procedure All the incriminating circumstances were put to the Appellant who denied them. The plea of the Appellant before the trial Court was that on 7.3.1986 a false case was registered against him at the instance of one Shisha Singh in Police Station Gharaunda. On that day, i.e. on 7.3.1986 at about 8/9 p.m., the police of Gharaunda came to his residence along with Shisha Singh and arrested him from his house. His arrest was falsely shown on 10.3.86 and the present recovery has been falsely planted upon him.

In defence, the accused examined Inderjit Ahlmad of the Court of Judicial Magistrate 1st Class, Karnal, who proved the acquittal of the Appellant in case F.I.R. No. 92 dated 7.3.1986 registered u/s 356, I.P.C. D.W. 2 Subedar Raghbir Singh stated that place of recovery is a very busy place. This bridge is used by resident of 10-12 villages which fall near the alleged place of recovery. Further it has been deposed by this witness that 30 to 40 persons including labourers work on the Weigh bridge and there are fields in which ordinarily people remain busy.D.W. 3 Shri Jaimal Singh deposed that the Appellant was taken into custody from his house by the police.

The trial Court, however, gave full weight to the version of the prosecution and convicted and sentenced the Appellant in the manner indicted above and feeling aggrieved by his conviction and sentence, the present appeal.

I have heard Shri R.S. Cheema, learned senior counsel assisted by Mr.K. D.S. Hooda, Advocate appearing on behalf of the Appellant and Shri Sailender Singh, D.A.G. Haryana appearing on behalf of the Respondent and with their assistance gone through the record of this case.

After hearing Learned Counsel for the parties, I am not impressed with the reasons adopted by the trial Court when it recorded conviction of the Appellant. After scanning through the evidence of this case, I am of the opinion that since recovery has been effected from a place which is open and accessible to all and there was an opportunity on the part of the Investigating Officer to associate an independent witness and that the non-joining of an independent witness casts reasonable doubt in the mind of the Court about the factum of recovery. It has been proved on the record that against this very Appellant, this very S.H.O. registered F.I.R. No. 92 u/s 356, I.P.C. on 7.3.1986. The possibility cannot be ruled out that this man might have been taken into custody in that very F.I.R. just after its registration. Since this man was irksome to the police and the complainant of the said F.I.R., Anr. case might have been planted upon him so as to keep him busy in the criminal proceedings. The present recovery has been shown dated 10.3.1986 and in this regard F.I.R. No. 103 dated 10.3.1986 has been registered but the recovery memo Ex. PA would indicate that no.F.I.R. number has been given in this document. Even ruqa Ex. PB indicates that the Special Report of this case was sent to the learned Magistrate. In all probabilities that the Special Report ought to have been received by the Judicial Magistrate either on 10.3.1986 or on 11.3.86 but strange enough it has been received on 12.3.1986 at 10.30 a.m. The counsel for the Appellant has also invited my attention to the certified copy of the remand paper of accused in F.I.R. No. 92 dated 7.3 1986 in which it has been stated that the Appellant has been arrested on 11.3 86 which again belies the story of the prosecution with regard to the arrest of the Appellant in the present F.I.R, on 10.3.1986. Be that as it may, there is discrepant evidence with regard to the actual date of arrest of the Appellant, but established fact is that the present recovery has been effected from an open and accessible place. The police party must have remained at the spot for sufficient long time in order to complete the documents but strange enough the police has not associated any independent witness so as to give confidence in the mind of the Court about the recovery. There is no document on record to indicate that the grounds of arrest were ever supplied to the Appellant. Also investigation of Sub-Inspector Darshan Kumar has not been verified by any Gazetted Officer so as to infuse confidence about the genuineness of the recovery. Even no special report has been issued to the higher authorities about the detection. Though provisions of Section 52 or 57 in this case are directory in nature if this Court finds that the prejudice has been caused to the Appellant on account of noncompliance, the Appellant is entitled to acquittal.

Learned Counsel also made endeavour to convince this Court that the mandatory provisions of Section 50 of the N.D.P.S. Act have not been complied with in this case but I am not convinced with this argument for the reason that it is not established on the record that Sub-Inspector Darshan Kumar conceived reasonable belief that the Appellant was carrying opium.

I have already stated above that the implicit reliance cannot be placed on the testimony of the police officials in the present case keeping in view that the Appellant was earlier wanted by the police in case F.I.R. 92 and chances cannot be ruled out for false plantation of opium upon the Appellant. Non-joinder of the independent witness creates Anr. reasonable doubt in the mind of the Court about the genuineness of the recovery and this doubt of the Court stands further strengthened when the directory provisions of Section 52 or 57 have been ignored by the Investigating Officer. The cumulative effect would be that the Appellant will be entitled to the benefit of doubt and he stands acquitted of the charge framed against him. The case property, however, stands confiscated to the State. The Appellant shall stand discharged from the bail bond and surety bond, if any.