State of Punjab vs Avtar Singh

S. S. Rathor, J.

Accused Avtar Singh, aged 75 was allegedly found in possession of 200 Gms of opium without a licence by the Police party comprised of ASI Gurbachan Singh (PW1) and Constable Ashwani Kumar (PW2) on 111986 in the area of FCI godowns near Gill Canal, Ludhiana. A sample was taken out of the lot and on analysis was found to be opium vide report of the Chemical Examiner Ex. PF.

The relevant prosecution evidence would be discussed while dealing with the conclusions drawn by the trial Court, while acquitting the accused. The trial Court has acquitted the accused primarily on the grounds: (i) that it is not safe to base conviction on the sole statements of official witnesses particularly when the investigating officer did not care to join any independent persons which were available in abundance; and (ii) that various mandatory provisions of the Narcotic Drgus and Psychotropic Substances Act, 1985 (hereinafter referred to as the `Act'') have not been complied with particularly Section 50 of the Act, noncompliance of which is fatal to the prosecution case.

Taking the second point first about the noncompliance of Section 50 of the Act, it is suffice to say that there is no material on record to show that the Investigating Officer recorded the statement of the accused to the effect that if he wanted to get his person searched in presence of any gazetted officer or any Magistrate ? Instead of observing these statutory provisions of the Act, the accused was directly brought to the Police Station where he was put behind the bars. Of Course, during the trial a crude attempt has been made by way sheer improvement that the Thanedar did ask the accused if he wanted to get his search effected in the presence of a gazetted Officer or not. This statement of Constable Ashwani Kumar (PW2) in the absence of the statement of Investigating Officer to that effect is otherwise of little evidentiary value to come to the conclusion that the statutory right is envisaged by the Act was afforded to the accused. In terms of Section 50 of the Act it was incumbent upon the Investigating, Officer to take the accused, when apprehended, to the nearest gazetted Officer/Magistrate without any delay whatsoever if the accused so required on being asked so. The statement of ASI Gurbachan Singh (PW1) is conspicuously silent to say that he asked the accused to exercise this valuable right. The provisions of the Act are very stringent in nature and call for most severe and deterrent punishment. The provisions of Section 50 have been opined to be mandatory in nature by a Division Bench of this Court in a case reported as Amrit Singh v. State of Haryana, 1990(2) Recent Criminal Reports 525 . As such, glaring defect in the investigation for noncompliance of Section 50 of the Act would result in failure of the prosecution case ending in acquittal of the accused.

Even otherwise, we have gone through the statements of both the official prosecution witnesses and we are of the view that recovery of opium from the possession of the accused is, not proved beyond reasonable doubt. The accused was apprehended at FCI godowns near Gill Canal, Ludhiana which undisputedly is a thickly populated place. The official witnesses were on patrol duty and nonjoining of any independent witness at the time of arrest and seizure of the contraband at a thickly populated place would certainly render the ocular version of the official witnesses to be tainted and incredible and certainly unfit to base conviction on such evidence when otherwise too, the statements of such witnesses are discrepant on material particulars.

In view of the discussion made above, the reasons recorded by the trial Court acquitting the accused, do not call for any interference by this Court. The view adopted by the trial Court is reasonable and plausible and there is no scope with this Court to substitute its own different view of the whole matter. Hence the appeal filed by the State is ordered to be dismissed.