Satnam Singh vs State of Punjab

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 26th November, 1994 passed by the Court of Additional Sessions Judge, Gurdaspur, who convicted the appellant Satnam Singh under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'') and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was ordered to undergo rigorous imprisonment for a further period of two years.

Satnam Singh appellant faced the charge under Section 18 of the Act on the allegations that on 26th December, 1992, he was allegedly found in possession of opium weighing 2 kgs. in the area of canal bridge Tatle without any licence or permit and thereby he allegedly committed the offence under the aforesaid Section.

The case set up by the prosecution is that on 26th December, 1992, A.S.I. Jarnail Singh (PW2) along with other members of the police party was going for patrolling in a bullet proof Govt. vehicle and the Police Party was proceeding from Qadian towards Tatle Kuhar. When the Police Party reached at a distance a little short of Canal Bridge of village Tatle, the accused was seen turning towards the canal bank on seeing the Police Party. On the basis of suspicion, the accused was apprehended by the Thanedar. At that time the appellant was found carrying a Jhola in his right hand. The A.S.I. inquired from the accusedappellant if the latter wanted to give search in the presence of some Gazetted Officer or a Magistrate. The accused reposed confidence in the Thanedar. Resultantly, search of the appellant was carried out and opium from the Jhola was found. On weighment it came to be 2 kgs. wrapped in a glazed paper. The Thanedar separated 50 grams of the opium from the bulk and made a sealed parcel of the same. The remaining opium was separately sealed and the entire case property was taken into possession vide recovery memo. (Ex. PA) along with the Jhola (Ex. P1), which was attested by Head Constable Joginder Singh and Head Constable Darshan Lal. Ruqa (Exhibit PB) was sent to the Police Station, whereupon formal F.I.R. Exhibit PB/1 was recorded by Moharrir Head Constable Kuljit singh. The Thanedar prepared rough site plan (Ex. PC) of the place of recovery and recorded the statements of the witnesses. On return to the Police Station, he produced the sample and the case property before the S.H.O. Rajbir Singh, OfficerinCharge of the Police Station, who resealed the case property with his own seal bearing the mark "RS". The sealed parcel of the sample of the opium was sent to the office of the Chemical Examiner, who declared the contents as opium. On the completion of the investigation of the case, the accused was challaned in the Court of the Illaqa Magistrate, who supplied copies of the documents to the accused and vide commitment order dated 19th April, 1993 the Magistrate committed the accused to the Court of Session.

Learned Additional Sessions Judge framed the charge under Section 18 of the Act, which was read over and explained to the accused, who pleaded not guilty and claimed trial. In order to prove the charge, the prosecution examined Head Constable Darshan Lal (PW1) and A.S.I. Jarnail Singh (PW2). The prosecution also tendered in evidence affidavit of Moharrir Head Constable Kuljit Singh as Exhibit PD. Affidavit Ex. PE of Constable Darshan Singh was also tendered in evidence. Head Constable Joginder Singh and S.I. Davinder Singh were given up as unnecessary. PW3 is Shri Hukam Chand, Judicial Magistrate Ist Class, Batala, before whom the case property along with the sample was produced. PW4 is Inspector Rajbir Singh, who had resealed the case property.

On the closure of the prosecution evidence statement of the accused was recorded under Section 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution case were put to him, who denied all the circumstances as follows :

"I am innocent. I was driving truck No. PJ14G1454 in the month of December 1992. The said truck was requisitioned by the police of P.S. Qadian (ASI Jarnail Singh) and when I took out that truck from police custody after one week duty, A.S.I. Jarnail Singh again detained my truck and myself in the Police Station. I refused to do the duty further and on account of this fact, this false case was registered against me."

When called upon to enter his defence, the accused examined DW1 Kuljit Singh, Head Constable.

Learned Additional Sessions Judge, Gurdaspur vide the impugned judgment and order, convicted and sentenced the appellant in the manner as stated above.

No assistance has been rendered from the side of the appellant. I, however, have heard Shri J.S. Brar, Deputy Advocate General, Punjab, and have perused the record of this case independently.

It is a case of chance recovery. It appears that no serious efforts have been made by the Investigating Officer to comply with the provisions of Section 50 of the Act. The case set up by the prosecution is that the appellant was apprehended on the basis of the suspicion. The Thanedar inquired from him as to whether he wanted to give his search in the presence of a Gazetted Officer or the Magistrate to which the accused reposed confidence in the Thanedar. No written notice was served on the appellant, seeking his option. Similarly, the statement of the appellant has not been recorded, so as to corroborate the veracity of PW2, A.S.I. Jarnail Singh, as to whether any option of search was given to the appellant or not. No doubt in the Act there is no specific form as to how the notice is to be served upon the person, who is to be searched, but in the present case, there was ample opportunity for the Investigating Officer to record the statement of the appellant and he had every reason to issue a notice in writing to the appellant before taking search of the Jhola. It appears that before taking the search of the Jhola, the Investigating Officer has taken the courtesy to depute Head Constable Darshan Lal to go to the village in order to bring scale and weights and the said Shri Darshan Lal was further directed to bring some respectable person from the village. It is strange that no respectable was associated by the Investigating Officer before taking the search of the Jhola (Ex. P1). Darshan Lal (P.W. 1) has deposed that one Constable was sent to the village to bring the witness and he was also deputed to bring weights and the scale, but nobody was reported to be willing to join the Police Party. It is the case of the prosecution that recovery was effected from the Jhola of the accusedappellant. The Police Party remained at the spot for 31/2 hours. By this time somebody must have passed by the side of the Police Party, but the Thanedar did not associate any independent witness in order to attest the recovery of the opium. Also, the investigation in this case has not been got verified from any Gazetted Officer. Even A.S.I. Jarnail Singh admits in his crossexamination that he did not try to join any witness for recovery. He simply orally asked the appellant whether he wanted to be searched from a Gazetted Officer or a Magistrate. The Investigating Officer also admits that he did not prepare any memo in this regard and he did not obtain the signatures of the accused. The Investigating Officer also admits that he had taken about 21/2 hours to complete the investigation at the spot. All this leads to the firm conclusion that the Investigating Officer had ample time to associate an independent witness, if he did not think it proper to record the statement of the appellant. The investigation in this case has been done in a defunctory manner. The mandatory provisions of section 50 of the Act have not been complied with by the Investigating Officer. Reasonable doubt has been created in the mind of this Court, the benefit of which should go to the appellant.

Learned Deputy Advocate General, appearing on behalf of the State, submits that no serious prejudice has been caused to the appellant if the provisions of Section 50 of the Act have not been complied with. I do not subscribe to the submission raised by the learned Deputy Advocate General. Serious prejudice has been caused to the appellant when the mandatory provisions of Section 50 of the Act have not been complied with by the Investigating Officer, when he had the opportunity to do so. The recovery is from a thoroughfare and he could get the search in the presence of a Gazetted Officer or an independent witness at the spot but the Thanedar deputed a Constable to go to a nearby village for bringing the scale and the weights. The Investigating Officer could get the assistance of the Chowkidar or the Lambardar of the village. He could also produce the accused before the Gazetted Officer after the arrest. There is no cogent evidence on the record that the Investigating Officer had sent any special report to the higher authorities about the present recovery. From all this, I am satisfied that there is reasonable doubt in the mind of the Court, for which I give the benefit of doubt to the accusedappellant.

Resultantly, I accept this appeal, set aside the judgment and order dated 26th November, 1994 passed by the learned Additional Sessions Judge. Gurdaspur, and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and the same is ordered to be destroyed according to rules.

Intimation be sent to the jail authorities about the acceptance of the appeal and the acquittal of the appellant.