Satnam Singh vs State of Punjab

R. L. Anand, J.

Two appellants Satnam Singh and Darshan Singh have filed the present criminal appeal and it has been directed against the judgment and order dated 8.8.1997 passed by the court of Additional Sessions judge, Sangrur who convicted the appellants under sections 15 of the N.D.P.S. Act and sentenced each one of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one (lac) each. In default of payment of fine, each one of them was further sentenced to undergo rigorous imprisonment for a period of one year.

The brief facts of the case are that ASI Gurmail Singh Incharge of Police Post Khanauri alongwith Head Constable Mukhtiar Singh and other Police Post Khanauri along with Head Constable Mukhtiar Singh and other police force were returning in a Government Vehicle from Moonak Harirgarh towards Manvi through pucca road after patrolling. When they reached near the bridge of canal minor in the area of village Manvi the accused were seen coming on tractor trolley from the opposite side. Satnam Singh was the driver of the tractor trolley while Darshan Singh was sitting on the gunny bags on the tractor trolley. On suspicion they were stopped. The tractor was Mahindra make with registration No. PCC 1059 of blue colour. ASI Gurmail Singh told them that he wanted to search the tractor trailer if they so desire search could be made in the presence of a Gazetted Officer or a Magistrate. Both of them reposed confidence in him. Their statements were recorded as token of consent.

Thereafter tarpaulin was removed. In the meantime Raj Kumar PW came there and he was joined in the investigation. He searched the tractor trolley. In the presence of Raj Kumar 42 gunny bags containing poppy husk were recovered from the tractor trolley. Each bag was found to contain 40 Kilograms of poppy husk. Two samples of 250 grams each were separated from each bag and the remaining poppy husk was kept in the same bag. Gunny bags and sample were made into parcels separately and were sealed with the seal bearing impression GS. The case property was taken to the Police Station by the Investigating Officer. The seal after use was handed over to Head Constable Mukhtiar Singh. From personal search of Satnam Singh Rs. 56/ were recovered and from the personal search of Darshan Singh currency notes of Rs. 22/ were recovered which were taken into possession by the police. Registration book and other documents of the tractor were taken into possession by the police. Ruqa was sent for the registration of the case on the basis of which formal F.I.R. was recorded. Investigating Officer also prepared the rough site plan. On return to the Police Station he produced the case property with seals intact before Ajaib Singh, S.H.O. alongwith the accused and the witnesses. He verified the investigation and resealed the case property with his own seal bearing inscription AS. The sample was sent to the office of the Chemical Examiner who declared the contents ass chura poppy husk. On completion of the investigation, the accused were challaned in the court of Area Magistrate who supplied copies of the documents to the accused as required under law and vide commitment order dated 28.1.1991 committed the accused to the court of Sessions. Vide order dated 1.4.1991, appellants were chargesheeted under section 15 of the N.D.P.S. Act. The charges were read over and explained to the accused to which they pleaded not guilty and claimed trial.

In order to prove its charge, prosecution examined ASI Mukhtiar Singh as PW.1, Inspector Gurmail Singh as PW. 2, Inspector Ajaib Singh as PW.3, ASI Lachman Dass as PW. 4 and Constable Jagdish Singh as PW. 5. Raj Kumar was not examined by the prosecution. He was given up as having been won over by the accused. Further prosecution tendered in evidence report of the Chemical Examine Ex.PL and closed the case.

Statement of the accused was recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances. Plea of Satnam Singh appellant was as under :

"I am innocent. All the witnesses are official witnesses and are enimical towards me. I was taken away from my residential house from my village Hario on 13.7.90 at about 445 P.M. by the police in the presence of Dharam Singh Lambardar and Kuldeep Singh son of Sadha Singh and no recovery was effected from me. Police of P.S. Moonak, started foisting false case of (Section) 61 Excise Act against me and as a result prepared document against me and Darshan Singh under Section 61 Excise Act but subsequently due to some extraneous reasons police changed its mind and foisted a false case of NDPS Act against me and Darshan Singh had prepared false documents at the police station P.S. Moonak."

Plea of Darshan Singh taken up before the Trial Court was as under :

"That the police arrested me from my house in the presence of Raghbir Singh son of Udham Singh of village Daban Kher on 12.7.90 and was brought me to Police Post Khanaur and later on I was falsely implicated in this case. I am innocent and have not committed any offence. I will produce the defence."

When called upon to enter his defence accused examined Raghbir Singh, DW.1, Dharam Singh as DW. 2 and Constable Hari Dass DW. 3.

Learned Trial Court believing the prosecution story and rejecting the defence version convicted and sentenced the appellants in the manner indicated above. Feeling aggrieved against his conviction and sentence the present appeal.

I have heard Shri K.S. Dhaliwal Advocate appearing on behalf of the appellants and Shri S.S. Randhawa, D.A.G. Punjab and with their assistance have gone through the record of this case.

After going through the evidence of this case, I am of the opinion that the investigation has been conducted in a defunctory manner causing reasonable doubt in the mind of the court about the genuineness of the recovery irrespective of the fact that the recovery is very heavy. When the prosecution is relying upon heavy recovery, it was solemn duty of the prosecution to prove the investigation in above board manner which has not been done in the present case. It is the case of the prosecution that Raj Kumar came at the spot but strange enough he has not attested the so called consent statement which has been recorded by the Investigating Officer. The consent statement Ex.PB is on the record. A reading of the same would show that the appellants had deposed before the thanedar that they had confidence in him and the search could be taken by the police party. In these circumstances, when the appellants were shedding their valuable right under section 50 of the N.D.P.S. Act, it was obligatory on the part of the Investigating Officer to take assistance of some independent witness. Even if it is assumed for arguments sake, that Raj Kumar came at the spot subsequently, Investigating Officer had not obtained his attestation. In these circumstances, there is noncompliance of Section 50 of the Act. Shri Raj Kumar appeared at the spot whose attestation was not taken by way of verification on the consent statement Ex. PB which is lacking would show that the provisions of Section 50 were not complied with. To supplement this very argument of the case, even the statement of the accused which was allegedly recorded by the Investigating Officer is not correct. The statement is joint one which is not permissible according to law as held by the various authorities of this court in Baljeet v. State of Haryana, 1998 (3) RCC 14, Nimma Ram v. State of Punjab, 1999(2) RCR 449 , Jaswant Singh v. State of Haryana, 1998(2) RCR 384 and Paramjit Singh v. State of Punjab, 1997(1) RCR 293. Learned counsel appearing on behalf of the respondent has not cited any law contrary to the established law that joint statement of the accused is not good compliance for the purpose of Section 50. In this view of the matter, this appeal succeeds on the short ground that compliance of Section 50 of the N.D.P.S. Act has been made in a satisfactory manner.

Resultantly, I allow this appeal and set aside the judgment and order of the Trial Court and acquit the appellants of the charge framed against them. The case property, however, stands confiscated to the State. The truck and the trolley shall be given to the accused against proper receipt after seeing valid registration. The appellants are in custody and are serving sentence at Central Jail, Patiala. Let intimation be sent to the Superintendent, Central Jail Patiala so that the appellants may be able to come out from the jail, if not wanted or convicted in any other case.