State of Punjab vs Bakhshish Singh

S.S. Rathor, J.

Inspector Rupinder Pal Singh (PW2) alongwith other Police Officials was holding a picketing (Nakabandi) on the Canal bridge of Rajasthan feeder in the area of village Chak Gandha Singh Wala, when at about 7.00 p.m. the accused was secured by the police party while carrying a gunny bag. On search, the bag was bound to contain opium weighing 10 Kgs. and 10 grams. The sample was taken out of the lot and it was duly sealed. Memo. Ext. PA attested by the official witnesses was prepared and Ruqa Ext. PB was sent to the Police Station and on receipt of the same, formal FIR Ext. PB/1 was recorded with Police Station Sadar, Muktsar. After completing the remaining investigation at the spot, case property was deposited with MHC Charanjit Singh with seals intact. On analysis of the sample, the public Analyst opined the same to the opium vide its report Ext PD.

The only official witnesses PW 1 S.I. Harbans Singh and PW2 Inspector Rupinder Pal Singh were examined during the trial. Formal affidavits Exits PE and PF of MHC Charanjit Singh and Constable Harnek Singh were also tendered by examining these two prosecution witnesses. Report of the Public Analyst Ext. PD was also tendered. On closure of the prosecution evidence accused was examined under section 313 Cr.P.C. and he denied the incriminating evidence put before him and pleaded false implication.

After appraisal of the prosecution evidence, the trial Court admitted the accused. Feeling aggrieved, the State filed the appeal against order of acquittal which was admitted by as Division Bench of this Court vide order darted 12.7.1988. This appeal has been posted now before us for final disposal.

Admittedly, the police party was holding a picketing on a canal bridge. Presumably, picketing had been done by the police on receipt of a secret information. When picketing/Nakabandi is held, it is expected that the Police official heading the party should join in the party some independent witness. In this case, no such effort was made. It is there in evidence that house of the Chowkidar was near the bridge. Neither the Chowkidar was joined nor any independent witness was procured at least through the Chowkidar whose services are available to the police. The fact remains that in the case of picketing generally it is done on some prior information with the Police and it is necessary for the Police to join some independent person. Having not done so, it is not safe to place reliance on the sole testimony of the official witnesses, whose statements are otherwise infirm and discrepant on material points.

The matter does not end here. A perusal of the statements of the official witnesses does not suggest even remotely that there is any compliance of the mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, particularly its Section 50. The Ruqa Ext. PB and spot memo Ext. PC are conspicuously silent that any effort was made to the accused to get his search effected in the presence of a gazetted officer of a Magistrate, if so desired. What to say of these documents, even in the Court PW 2 Inspector Rupinder Pal Singh has not stated so that he asked the accused for his search before a gazetted Officer or a Magistrate. Similarly nothing has been said by P.W. 1 S.I. Harbans Singh on this material point.

In view of the discussion made above, the ratio laid down by this Court in Amrit Singh v. State of Haryana, 1990(2) Recent Criminal Reports 525 is fully applicable to the present case wherein this Court has laid emphasis that noncompliance of the provisions of Section 50 of the Act is fatal to the prosecution case. It has also been desired by the court that for unavoidable reasons independent witness should be joined by the Police to corroborate the prosecution version.

The trial Court passed the impugned order of acquittal primarily on the grounds referred to above after just appreciation of ocular and documentary evidence placed on record. The conclusions and observations arrived at by the trial Court are perfectly legal and there is no scope with this Court to interfere with the order of acquittal earned by the respondent on failure of the prosecution to prove its case. Accordingly, the State appeal is ordered to be dismissed.