State of Punjab vs Bikkar Singh

S.S. Rathor, J.

On 29.6.1987, the accused was arrested by the Police party headed by ASI Major Singh (PWI) in the area of village Jharon while the said Police party was patrolling the area. On search from the small gunny bag being carried by the accused on his head, poppy husk weighing 10 kgs, was recovered for which he could not produce any permit. The investigating officer took the sample out of the contraband in question and the remaining poppy husk was taken into possession vide recovery memo, Ext. PA. Ruqa Ext. PB was sent to the Police Station on the basis of which formal FIR Ext. PB/1 was recorded in the police station. After investigation of the case and arrest of the accused, he was challaned for an offence punishable under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 hereinafter referred to as the Act). The challan was presented in the Court of Judicial Magistrate 1st Class, Sangrur where the accused was supplied with the copies of necessary documents and the case was committed to the Court of Session for trial.

The trial Court charged the accused for an offence punishable under Section 5 of the Act, to which he pleaded not guilty and claimed trial.

The prosecution examined official witness namely, ASI Major Singh (PW 1) and HC Teja Singh (PW 2) in support of the factum of arrest and seizure of the poppy husk from the possession of the accused.

Chemical Examiner''s report Ext. PD was also tendered in evidence alongwith the affidavits of police officials to prove the link evidence. After closure of the prosecution evidence accused when examined under section 313 Cr.P.C. vehemently denied the prosecution allegations and while pleading innocence claimed false implication.

The trial court disbelieved the prosecution story primarily on the ground that it would be unsafe to believe the ocular version of interested police officials particularly being discrepant on material points and also that the investigating officer did not care to join any independent witness at the time of arrest or recovery of the poppy husk from the possession of the accused inspite of independent witnesses being available in abundance. The trial court also found the investigation to be against the mandatory provisions of the Act. Feeling aggrieved against the order of acquittal passed by the trial court, State filed this appeal which was admitted by a Division Bench of this court vide order dated 1.11.1988 and the same is being disposed of finally vide this judgment.

Admittedly the prosecution story rests upon the statements of official witnesses. There is no legal bar to base conviction on the statements of official witnesses only when their evidence inspires confidence and is trustworthy. In the present case, the accused was arrested at a thoroughfare which was being frequented by the public. A perusal of the statements of these official witnesses does not show that any effort was made to join any independent witness. Rather, the desirability of joining independent witness was completely ignored. The matter does not rest here. The statements of both the official witnesses are not consistent on material points and such inconsistencies do render their evidence to be tainted and incredible.

Over and above this, the trial court also acquitted the accused on the ground that mandatory provisions of section 42 of the Act have not been complied with and the investigating officer had no jurisdiction to investigate the case. For just decision of this case, this point need not be answered. As conceded by the State counsel and also being evident from the record, it is clear that the investigating officer gave complete go bye to the mandatory provisions of section 50 of the Act. Relevant section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 reads :

"50. Conditions under which search of persons shall be conducted (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41 section 42 and section 43, he shall if such person so requires, take such person without necessary delay to the nearest Gazetted Officer of any of the department 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."

There are numerous judgments dealing with the interpretation of the provisions section 50 of this Act. A Division Bench of this court in a case reported as Amrit Singh v. State of Haryana, 1990(2) Recent Criminal Reports 525 , has observed that provisions of section 50 are mandatory in nature and non compliance of the same per se would be fatal to the prosecution case. This court further observed that such offer should be made as far as practicable in the presence of two independent respectable witnesses of the locality and if the designated Officer fails to do so, the onus would be on the prosecution to prove that association of such witness was not possible in the facts and circumstances of the particular case. It was further observed that if these provisions of the Act are not complied with, it would amount to rendering nugatory of the safeguards provided to the accused under the Act when apprehended and search is effected from him. The court further expressed the view that by all means, the investigating officer should make sincere efforts to join independent witnesses to lend credence to the statements of the official witnesses. It was also opined by the Division Bench that if no such effort is made and no explanation is placed on record for non joining of independent witnesses, the prosecution story should be looked upon with suspicion and it would be unsafe to base conviction on such evidence alone.

The facts and circumstances of the present case are squarely covered by the observations made by the aforesaid Division Bench of this Court. The view of the trial Court that it would not be safe to base conviction on the sole statements of official witnesses in the facts and circumstances of the case, is just and legal. The evidence on record has been correctly appreciated and no material fact has been ignored. There is no scope of interference in the wellreasoned judgment of the trial court both on facts and in law and as such, the State appeal is ordered to be dismissed.