State of Punjab vs Angrej Singh

H. S. Brar, J.

Prosecution case in brief is that on 19.4.1987 ASI Jagdish Lal in the company of other police officials, was going from village Bahavwala to Rajpura in connection with patrol duty and in the area of Rajpura, the accused was spotted and when he tried to slip away, he was apprehended on suspicion. On search of the bag carried by the accused, one kilogram of opium was recovered. Sample of 10 grams of opium was taken out and the remaining opium was put into a separate tin. The sample and the tin containing bulk opium were sealed with seal JLS and the case property was taken into possession vide memo Ex. PB. ruqa Ex. PA was drawn at the spot and was sent to the PoliceStation, Sadar Abohar for registration of the case whereupon formal FIR Ex. PA/1 was recorded. Rough site plan Ex. PE was prepared at the spot. The case property was produced before SI/SHO, Major Singh, at the Police Station, who sealed that same with his own seal. Open receipt of the report of the Chemical Examiner and on completion of the investigation of the case, challan against the accused was presented in the committing Court.

Copies of necessary documents under Section 207 Cr.P.C. were supplied to the accused and the accused was committed to the Court of Session by Shri M.R. Garg, Sub Divisional Judicial Magistrate, Fazilka. Charge was framed against the accused under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called ''the N.D.P.S. Act). The accused pleaded not guilty and claimed trial.

Prosecution in order to substantiate the aforesaid charge against the accused, examined Major Singh, Inspector, (PW1), Mukhtiar Singh Constable (PW2) and Jugdish Lal S.I. (the then ASI) as (PW3) PWs S.I. Manohar Lal and Head Constable Surinder Kumar have been given up being unnecessary. Affidavits of HC Banta Singh Ex. PC and that of Constable Amar Singh Ex. PD besides the report of the Chemical Examiner Ex. PF. have been tendered into evidence.

The accused when examined under Section 313 Cr.P.C. controverted the prosecution allegations and pleaded false implication.

After hearing the learned counsel for both the sides and after perusal of the record, learned Additional Sessions Judge, Ferozepur, acquitted the accused of the charge framed against him.

The learned Additional Sessions Judge acquitted the accused mainly on the two grounds;

(i) that the provisions contained in Sections 50, 52, 55 and 57 of the N.D.P.S Act have not been complied with;

(ii) that no independent witness has been joined by the policeparty though the recovery has been effected from a thoroughfare.

The appeal filed by the State of Punjab has been put up for final hearing before us today. The learned State counsel submits that it was not necessary to comply with Sections 50, 52, 55 and 57 of the N.D.P.S. Act, as according to him, the recovery of opium in the case is just a chance recovery. The learned State Coursel has further submitted that nonjoining of the independent witness has been explained. He, thus, submits that judgment of the learned Additional Sessions Judge, be set aside and the respondent be convicted and sentenced under Section 18 of the N.D.P.S. Act.

On the other hand, the learned counsel for the respondent submits that compliance of sections 50, 52, 55 and 57 of the N.D.P.S. Act was mandatory in character and noncompliance of the mandatory provisions of the Act, vitiates the trial. He further submits that the police had sufficient time to join the independent witnesses but they deliberately did not join them. The testimony of the police witnesses only, according to him, should not be relied upon and the judgment of the learned Additional Sessions Judge, according to him, is legal, just and is not liable to be reversed.

After hearing the learned counsel for the parties and going through the record with their assistance, we find that the judgment of acquittal dated 20.3.1990, passed by the Additional Sessions Judge, does not call for interference.

P.W. 3 S.I. Jagdish Lal (A.S.I. at the time of recovery) who had effected that search of the accused, has stated in his examinationinchief at the trial that he along with other police officials was going from Village Bhavwala to Rajpura and in the area of Rajpura, the accused was spotted and on suspicion, he was apprehended.

P.W. 2 Mukhtiar Singh Constable, Excise Staff, Zira has also deposed at the trial that he, A.S.I. Jagdish Lal (P.W.3) and other police officials were going for patrolling from Abohar to Bhavwala. In the area of Rajpura near the busstand, the accused was spotted and on suspicion he was apprehended. It means that the police party was on a patrol duty and S.I. Jagdish Lal P.W.3 before searching the accused, had become suspicious that the accused had in his possession of, the offending articles. In these circumstances, from the stage, he has the reason to believe that the accused person was in custody of narcotic drugs. H e was under an obligation to proceed further in the matter in accordance with the provisions of the N.D.P.S. Act. He did not adhere to the provisions of Section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate a requirement which has been held to be mandatory by the apex Court in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 736 : JT 1994(2) SC 108.

A reference to a decision of the Supreme Court in Mohinder Kumar v. State, Panji, Goa, 1995(2) Recent Criminal Reports 599 , would also be relevant. In Mohinder Kumar''s case, the facts were as under:

"That on the evening of January 20,1990 P.W.4 A.S.I. Umesh Goakar, while on patrolling duty in a jeep reached Anjuna outpost at village Vagator. After parking his jeep, he and the police party accompanying him except one Head Constable alighted from the vehicle and reached the house bearing No. 591 at small Vagator. He noticed two persons sitting in the veranda of that house and as soon as they saw him and the police party, they hurriedly entered the house. This aroused the suspicion of the SubInspector whereupon he and the police party went to the house and directed the two accused persons to stay where they were and asked the Head Constable to alert the others and to arrange for panchas. On the arrival of the panchas he and his companions entered the house and questioned the accused persons. He saw a white plastic bag lying by the side of the accused Mohinder Kumar. On search, he found that the bag contained two polythene packets of charas like substance. Both the packets were attached, weighed and samples weighing about 50 gms. were taken therefrom and sealed. The person of the accused was searched and two pieces of charas from the right pocket of his pant were revocered weighing about 10 gms. and samples therefrom were also taken. At the instance of the said accused Marc, an Indian National, further recovery was effected from the adjoining room where a shoulder bag was found containing charas weighing about 1.65 kg. From the said find also, samples were taken and were later sent to the Public Analyst for examination. The rest of the charas was separately packed and sealed. The report of the Public Analyst was received in due course."

Taking the above said facts into consideration, the Apex Court has observed as under:

"Under Section 42(1) proviso if the search is carried out between sun set and sun rise, he must record the grounds of his belief. Admittedly, he did not record the ground of his belief at any stage of the investigation subsequent to his realising that the accused person were in possession of charas. He also did not forward a copy of the ground to his superior officer, as required by Section 42(2) of the Act because he had not made any record under the proviso to Section 42(1). He also did not adhere to the provisions of Section 50 of the Act in that he did not inform the persons to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory.

In Balbir Singh''s case it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted."

Resultantly, the Hon''ble Supreme Court allowed the appeal and set aside the order of conviction and sentence and acquitted the appellantaccused of all the charges against him.

Admittedly, the police party was on patrol duty but they did not join any independent witness for the reasons best known to them. P.W. 2 Mukhtiar Singh Constable, Excise Staff, Zira has admitted in his crossexamination that no witness from the public was joined. P.W.3 S.I. Jagdish Lal has stated in his crossexamination that an attempt was made to join the independent witness but none was available. At the same time, he has admitted in his crossexamination that the police party remained at the spot for about four hours and there were farmhouses at some distance from the place of recovery.

In these circumstances, simply saying by this police witness that the independent witnesses were not available, without any evidence to that effect, is unbelievable and, thus, to convict the accused on the basis of testimony of police witnesses only shall not be safe.

In view of our discussion made above, we do not find any force in the State appeal which is hereby dismissed.