Satnam Singh vs State of Punjab

P.K. Jain, J.—This appeal is directed against the judgment/order dated 1-12-1995 passed by the Additional Sessions Judge, Amritsar whereby the appellant has been convicted u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lakh and in default of payment of fine to further undergo rigorous imprisonment for three years.

The facts necessary for the disposal of this appeal as contained in the First Information Report Ex. PC/1 are that on 18-8-1993. Inspector Sube Singh of Police Station Verowal along with A.S.I. Jagir Singh, Head-Constable Harbhajan Singh and other police officials was present on the turning of Nagoke in connection with patrolling. He received a secret information that a person indulging in illicit trade of narcotics had been coming on Here Honda every Wednesday and used" to sell opium to the opium eaters near that village and the adjoining villages, and that day being a Wednesday, he would be coming from the side of Khalchain. On this information, Arjan Singh, a resident of Khadoor Sahib was joined in the Police Party which held naka in the area of Mianwind on the minor canal bridge. After sometime the appellant was sighted while corning from the side of village Mianwind on motor cycle No. PAK 6966. On suspicion he was apprehended. Inspector Sube Singh told him that he was to conduct his search and as to whether he (appellant) wanted to get his search conducted in the presence of a Gazetted Officer or a Magistrate but the appellant reposed faith in the Sub Inspector. The statement Ex.PA of the appellant was reduced into writing. Inspector Sube Singh conducted the search of the bag recovered from the, carrier of the motor cycle of the appellant as a result of which 2 kilograms of opium wrapped in a glazed paper was recovered for which the appellant could not produce any permit or licence. A sample weighing 10 grains was separated. The sample and the remaining opium were converted into two sealed parcels with the seal of SS. Recovery memo Ex. PB was prepared. The sample seal was also prepared. The seal after use was handed over to Arjan Singh a public witness. Ruqa Ex. PC was sent to the Police Station on the basis of which formal FIR Ex. PC/1 was recorded. The sealed parcels and the sample seal were deposited in the Malkhana. Sample parcel was sent to the office of the Forensic Science Laboratory. After the receipt of the report of the Chemical Examiner and on completing the investigation a charge-sheet was submitted to the Court.

A charge u/s 18 of the Act was framed against the appellant which he denied and claimed trial. In support of its case, the prosecution examined three witnesses. Inspector Sube Singh (PW 1) is the Investigating Officer who had conducted the search of the appellant and had allegedly recovered the opium from his bag. Head Constable Tejinder Singh (PW 2) is M.H.C. Malkhana with whom case property was deposited on. 18-8-1993 by Inspector Sube Singh, On 18-9-1993 he had sent the sealed parecel to the office of the Chemical Examiner through Constable Sukhdev Singh. A.S.I. Jagir Singh (PW 3) was a member of the police party and a witness to the search and recovery. Arjan Singh the public witness was given up as having been won over. Ex. PF an affidavit of Constable Sukhdev Singh and Ex. PH the report of the Chemical Examiner were tendered in evidence.

In this examination u/s 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded his false implication for the reason that his brother Sarwan Singh was wanted in certain cases by C.I.A. Staff Gurdaspur, that he was kept in illegal confinement for 18 years so as to coerce him to procure the presence of his said brother and thereafter he was implicated in this case by planting the said opium. He has examined three witnesses in his defence. Dhian Singh (DW 1) and Sukhwinder Singh (DW 2) have deposed that nothing was recovered from the appellant. Gurvail Singh (DW 3) on the basis of the record of Police Station Mehta has stated that Sarwan Singh brother of the present appellant has been named as an accused in four cases for different offences including murder and TADA of Police Station Mehta.

On an appraisal of the evidence produced before the Additional Sessions Judge, he found the appellant guilty u/s 18 of the Act and convicted and sentenced him as stated above. Feeling aggrieved the convict has come up in appeal.

I have heard the learned counsel for the parties who have taken me through the record of the trial Court.

Shri H. S. Riar, Advocate, the learned counsel for the appellant has assailed the conviction of the appellant on the grounds that there is no compliance of Section 50 of the Act. while pointing out the so-called memo Ex. PA alleged to have been prepared by Inspector Sube Singh it has been urged that the same could not have been prepared as alleged by the said Inspector and the dates mentioned thereon at point mark A and Mark B have been interpolated and similarly the date on Ex. PE has also been interpolated. It has been urged that according to the prosecution, Inspector Sube Singh had got the secret information which he ought to have disclosed to the appellant before making an offer and conducting his search but he failed to do so. Further, the learned counsel has argued that Arjan Singh was the only independent public person alleged to have been joined in the Police Party who had witnessed the search and recovery of the opium; that seal after use is also alleged to have been handed over to him, but he has not. produced and examined at the trial by the prosecution and has been given up with the excuse that he has been won over. According to the learned counsel non-production and non-examination of the independent public witness reflects a doubt on the prosecution case. The learned counsel has also argued that no sample seal which is alleged to have been prepared on the spot of the occurrence has been produced and proved on the record, and the sample seal of the Central Forensic Science Laboratory Form which is typed one could not be prepared either at the spot or in the handwriting of any body. It has also been pointed out by the learned counsel that the affidavit Ex. PF of Constable Sukhdev Singh cannot be read in evidence in as much as the said constable was not present when the affidavit was tendered in evidence nor he was produced for cross-examination by the appellant nor this affidavit was put to the appellant in his examination u/s 313, Cr.P.C. According to the learned counsel if this affidavit is ignored from consideration the report of the Chemical Examiner falls to the ground.

On the other hand Shri Ramanjit Singh learned Assistant Advocate General Punjab has argued that Inspector Sube Singh had given the necessary offer to the appellant before conducting his search and the record of such offer Ex.PA was prepared but the appellant reposed his faith in the said Inspector. It has been pointed out that once the requisite offer was given to the appellant, the fact that secret information was not disclosed to him becomes immaterial and there was due compliance of the provisions of Section 50 of the Act. It has also been argued by the learned Assistant Advocate General that independent public person was not examined as he had been won over and the conviction of the appellant has been rightly based upon two police officers whose testimony could not be shaken in any way in their cross-examination. It has also been pointed out by the learned Assistant Advocate General that the report Ex. PX received from the Chemical Examiner is admissible in evidence u/s 293, Cr.P.C. and the same has been rightly taken into consideration by the trial Court.

I have given my careful thought to the respective arguments advanced at the Bar.

Section 50 of the Act reads as under :-

"50. Conditions under which search of persons shall be conducted :-

(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, ''if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female."

It is not disputed that the provisions of this section are mandatory and the violation thereof is fatal to the prosecution. It is also not disputed that when any officer duly authorised u/s 42 of the Act is about to search a person under the provisions of Section 41, Section 42 or Section 43, he is bound to inform the person concerned that he had a right to be searched before a Gazetted Officer or a Magistrate. If the said person makes a choice then it is for the authorised officer to take him either before the Gazetted Officer or the Magistrate who is conveniently available. Then Sub-section (3) empowers the Gazetted Officer or the Magistrate, after necessary enquiry, to direct either discharge of the person forthwith or the search be made. What can be described as the kernal of the statutory safeguard is Sub-section (3) of Section 50 vesting a constitutional right in such a -person to protect his liberty by avoiding arrest and the investigation being nipped in the bud Legislature has vested power in the Magistrate or the Gazetted Officer before whom any accused is brought on his requisition made under Sub-section (2) to "forthwith discharge the person" without formal proceedings on his sole satisfaction that "he sees no reasonable ground for search", search takes place when he declines to "discharge" such a person.

To achieve the object of Section 50 of the Act as discussed above, if the authorised officer has a secret information in respect of the commission of an offence under the Act, he is bound to disclose the same to the person concerned and then to inform him regarding his right to be searched before a Gazetted Officer or a Magistrate. Without disclosing the secret information or the reason why the authorised officer wanted to conduct the search, a person is unable to make a choice as envisaged by Section 50 of the Act.

The question arose in a decision of the Delhi High Court rendered in Sunil Kumar Vs. State, . While placing reliance upon a judgment of the Bombay High Court in Usman Haidarkhan Shaikh Vs. The State of Maharashtra, , it was observed:-

"Otherwise also, it is not clear as to how the accused could exercise his right contemplated in Sub-section of Section 50 of the Act when the secret information received was not conveyed to him. It is implicit that once the secret information has been received then whether it is recorded or not it should be conveyed to the accused so that he can exercise the right of being taken before a Gazetted Officer or a Magistrate."

In conclusion, it was held in para 14 of the judgment as under (at page 3933 of Cri LJ) :-

"As referred to above and re-mentioned at the risk of repetition, it is not known as to what was the secret information received and the accused had not been told as to why he has been detained and his person is to be searched. A valuable right which could be exercised by the accused thus was lost and he could not exercise his option to be taken before a Gazetted Officer or a Magistrate. It may, therefore, be held that prejudice was caused to the accused."

In the present case it is not disputed that Inspector Sube Singh had not disclosed the secret information to the appellant before making the alleged offer and conducting the search of the bag. Non-disclosure of the secret information has deprived the appellant of a valuable right conferred upon him u/s 50 of the Act and prejudice was caused to him.

Coming to the fact as to whether Inspector Sube Singh (P.W.1) and A.S.I. Jagir Singh (P.W.3) can be believed on the point that an offer was given to the appellant ''that if he so desired, he could be searched either before a Gazetted Officer or a Magistrate'', it is necessary to make a reference to Ex.PA the record of the said offer. Just a bare look of this document would go to show that it could not be prepared on the spot at all. Admittedly, if any, such offer was given and the same was reduced into writing, the memorandum Ex.PA could not contain the ease number, the date of registration of the case and the offence. The obvious reason is that on a search being conducted nothing may be recovered. Further the entire writing on Ex.PA is in one hand apparently entirely-written at one and the same time. The date at Mark A and Mark B was originally 17-8-93 which has been interpolated as 18-8-1993. The explanation given by Inspector Sube Singh that the ink of his pen had exhausted and as such there was overwriting on the date at two places i.e. Mark A and Mark B on Ex.PA, is an afterthought and does not inspire any confidence. The necessary conclusion is that the document Ex.PA is highly suspicious and no reliance can be placed thereupon.

Still further it may be noted that A.S.I. Jagir Singh in his deposition has stated that Inspector Sube Singh had told the accused that he wanted to conduct his personal search and he had the right to get his search conducted in the presence of a Magistrate. Consent memo Ex.PA was reduced into writing. He has nowhere stated that the appellant was made aware of his right to be searched either before a Gazetted Officer or a Magistrate. Ex.PA the alleged memorandum is not a substantive piece of evidence which can be used only to corroborate either Inspector Sube Singh or a witness in whose presence it was prepared. Substantive evidence is the statement of the witness made on oath in the Court. If the matter is looked from that angle it is apparent from the testimony of A.S.I. Jagir Singh that provisions of Section 50 of the Act were not complied with.

From the above discussion, I am constrained to hold that Inspector Sube Singh did not comply with the provisions of Section 50 of the Act before conducting the alleged search of the bag purported to have been carried by the appellant on the carrier of his motorcycle. Non-compliance with the provisions of Section 50 of the Act is admittedly fatal to the case of the prosecution.

According to the prosecution case itself, Arjan Singh an independent public person was joined with the police party before whom search of the appellant was conducted and opium was recovered from his bag. It is also the case of the prosecution that the sample parcel and the remaining opium were converted into two separate parcels with the seal of SS and seal after use was handed over to Arjan Singh but interestingly Arjan Singh has not been produced and examined as prosecution witness at the trial. He has been given up merely on the pretext that he was won over. Even if a material witness has been won over as apprehended by the prosecution, still it is necessary and material that such witness must be produced and examined at the trial to reveal the truth. In this case the examination of the public witness Arjan Singh had become more essential due to an important link in the evidence of the prosecution to connect the appellant with the offence i.e. seal after use was handed over to him. The prosecution has not produced a copy of any Daily Diary Register to show as to when he returned the seal. It was only Arjan Singh who could have deposed as to whether seal after use was handed over to him and as to when he had returned the sale. This was all the more important to rule out the possibility that the sample parcel was not tampered with by anybody till it reached the hands of the Chemical Examiner. Non-examination of Arjan Singh is another factor which strikes at the root of the prosecution case.

Lastly, it may be stated that one of the essential facts to be proved affirmatively by the prosecution is that right from the stage of seizure till it reached the hands of the Chemical Examiner, there was no possibility of change or tampering with the sample parcel of the recovered material. In other words, the prosecution is bound to produce entire link evidence in this respect. In the present case, Constable Sukhdev Singh is alleged to have taken the sealed sample parcel from Moharrar Head Constable and had deposited the same in the office of the Forensic Science Laboratory. Instead of examining Constable Sukhdev Singh his affidavit Ex.PF has been tendered in evidence. The most important factor in this respect, is that Constable Sukhdev Singh was neither present on the date when this affidavit was tendered in evidence nor he was produced for cross-examination by the appellant. Admittedly the evidence of Constable Sukhdev Singh is one of the links in the Chain to rule out the possibility that the sample was tampered with by any body till it reached the hands of the Chemical Examiner. Unless the appellant had been given an opportunity to test the credibility of Constable Sukhdev Singh, the affidavit Ex.PF cannot be used against him. Further this affidavit was never put to the appellant in his examination u/s 313, Cr.P.C. so as to give him an opportunity to explain the same. If an important piece of evidence is not put to an accused in his examination u/s 313, Cr.P.C. and he has not been given an opportunity to explain the same, such evidence cannot be used for convicting him. If this link evidence is omitted from consideration the resultant effect would be that report Ex.PX of the Chemical Examiner cannot be read in evidence against the appellant. In other words it cannot be said that the prosecution has ruled out the possibility of the sample parcel having not been tampered with by anybody till it reached the hands of the Chemical Examiner. This circumstance further makes the case of the prosecution a suspect. This, view finds affirmation from a judgment rendered by this Court in Jal Singh Vs. State of Haryana, .

For the foregoing reasons 1 hold that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Consequently, this appeal succeeds. The conviction and sentence of the appellant are set aside, and he is acquitted of the charge u/s 18 of the Act. The appellant shall be released forthwith if not wanted in any other case.