State of H.P. vs Jagjit Singh and Another

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 30.11.1999 passed by the learned Special Judge, Solan, H.P. in Case No. 7-S/7 of 1999 whereby she acquitted the accused of having committed offences punishable u/s 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

Briefly stated the facts of the case are that on 29.9.1998 Sh. K.D. Khan (PW-11) who at the relevant time was posted as S.H.O. Dharampur was present at Subathu Chowk at about 4.10 p.m. alongwith Constable Surender Kumar and HCHari Ram. He received a secret information that one maruti van bearing No. CH-01-Q-7625 is coming from Kunihaar side. According to the informant there were two persons in the van and they were carrying some narcotic substance. PW-11 recorded the information vide Ext. PW 4/A and sent it to the Police Post from where it was sent to the Superintendent of Police through constable Surender Kumar (PW-4).

A short while later the vehicle in question came from Kunihaar side. It was stopped. Accused Jagjit Singh and Anil Kumar were in the van. Accused Anil Kumar was driving the van and accused Jagjit Singh was sitting in the front passenger seat. The van was searched but nothing was recovered. Thereafter constable Hari Ram was sent to bring independent witnesses and Bidhi Chand and Pramod Chauhan came to the spot. Option was given to the accused whether they wanted to be searched before a Gazetted Officer or before the police officials. The accused allegedly consented to be searched by the police officials. PW-11 gave his personal search and search of other witnesses to the accused vide memo Ext. PW 1/C. Then he searched the accused. 25 grams of opium was recovered on the personal search of accused Jagjit and 25 grams of charas was recovered on the personal search of accused Anil Kumar. Scales were brought from the shop of Jai Prakash. Two samples of five grams each were taken and sealed with seal-H. These samples were taken into possession vide memos Ext. PW 1/E and Ext. PW 1/D. Ruka Ext. PW 7/A was sent. Other codal formalities were completed on the spot. The accused persons were then informed of the grounds of arrest vide memos Ext. PW 1/F and Ext. PW 1/G. Special Report Ext. PW 11/C was sent to Addl. Superintendent of Police. On receipt of the report of the Chemical Examiner Ext. PW 11/D whereby two samples were found to be of charas and opium the challan was filed against the accused.

After trial the accused have been acquitted. Hence this appeal by the State.

The appeal can be disposed of on two short grounds. Admittedly the offending substance(s) i.e. charas and opium were recovered from the personal search of the two accused. While appearing in the witness box PW-11 only stated that option given to the accused was only that whether they wanted to be searched by police officials or a Gazetted Officer. HC-Hari Ram (PW-10) stated that the accused were asked whether they would like to be searched by PW-11, a Gazetted Officer or a Magistrate. Out of the independent witnesses Bidhi Chand (PW-1) turned hostile and did not support the prosecution at all. The second witness Parmod Chauhan (PW-2) partly supported the prosecution case. However, in his statement he does not state that the police before searching the accused had given option of search to the accused. The prosecution relies upon the search memos Ext. PW 1/A and Ext. PW 1/B according to which the accused were informed in written about their right to be searched before a Gazetted Officer or a Magistrate. The option is given in question form and reads as follows

I, K.D. Khan am posted as SI/SHO Police Station, Dharampur. I suspect that you Jagjit Singh s/o Sh. Raghubir Singh, caste Arora R/o L.I.G. 85, Sector 5, Parwanoo have kept some opium with you. You have a legal right to be searched before me, a Gazetted Officer or any Magistrate. Please inform me before whom you would like to be searched.

The option given to the other accused Anil Kumar is identical except that for the underlined word opium mentioned above the word charas has been used. There is no explanation how the Investigating Officer knew even before searching the accused as to which accused was carrying charas and which accused was carrying opium. This clearly indicates that these consent memos were obtained after the search had been completed.

The other ground on which the accused deserves acquittal is that in his statement PW-11 does not state as to what he did with the samples and the bulk charas and opium after sealing them. He does not even state that when the case property was lying with him it was not tampered with. HCBaldev Singh (PW-7) was acting as MHC and according to him on 29.9.1998 PW-11 deposited the case property and the samples with him and after one or two days he handed over the same to the regular MHC Vishesh Kumar. MHC-Vishesh Kumar (PW-8) stated that when he came back after availing leave the case property was handed over to him by PW-7 and he sent the samples to C.T.L. Kandaghat on 23.10.1998. Both the witnesses have stated that the case property remained intact as long as it remained with them. Both these witnesses do not state that the case property was kept in the Maalkhana. The Maalkhana Register has not been produced. Where was the case property kept? This question remains totally unanswered. No police official can keep the case property in his custody and it has to be deposited in the Maalkhana and entry has to be made in the Maalkhana Register. If such Maalkhana Register is not produced nor any averment made then an adverse inference has to be drawn against the prosecution. In addition thereto none of the prosecution witnesses i.e. PW-7, PW-8 and constable Chandrakant (PW-9) who took the samples to C.T.L. Kandaghat have stated that other than the samples any other material was either deposited in the Maalkhana or taken to the laboratory at Kandaghat. There is no mention of any sample seal impression or R.C.B. form or road certificate. Therefore the link evidence in this case is also totally missing.

The only independent witness who has partly supported the prosecution case i.e. PW-2 also states that he does not know what articles were recovered from the accused persons and it was only in the police station that he was shown charas and opium. Therefore, his version also does not support the prosecution.

In view of the above discussions there is no merit in the present appeal which is accordingly dismissed. Bail bonds furnished by the accused are ordered to be discharged.