State of Punjab vs Kulwant Singh

Harphul Singh Brar, J.

This is an appeal against the judgment of the learned Additional Sessions Judge, Ferozepur dated 2.5.1990 vide which he had acquitted the respondent Kulwant Singh who was charged under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called the NDPS Act).

The prosecution case in brief is that on 21.5.1988, A.S.I. Baldev Raj along with Head Constable Harbans Lal and other police officials was going from Balluana to Chanan Khera on patrol duty. When the police party reached the link road in the revenue limits of Chanan Khera, the accused (respondent in this appeal, hereinafter referred to as the ''respondent''), was spotted and apprehended due to suspicion. A.S.I. Baldev Raj asked the respondent as to whether he wanted to get his search effected in the presence of a Gazetted Officer or the Magistrate, but he declined the offer and memo Ex. PE was prepared in this regard which was thumb marked by the respondent. A.S.I. Baldev Raj then carried out the search of the respondent and recovered one kilogram of opium from this possession which he was carrying in a bag in his right hand. 10 grams of opium was separated as sample and was made into a parcel. The remaining bulk of the opium was also made into a parcel. Both the parcels were sealed by A.S.I. Baldev Raj with his seal bearing initials ''BR'' and were taken into possession vide memo Ex. PA. Ruqa Ex. PC was sent to the police station on the basis of which formal FIR Ex. PC/1 was recorded by A.S.I. Balwant Singh. Rough site plan Ex. PD was prepared. On return to the police station, the case property along with the sample was produced before S.I. Manohar Singh, Incharge of the police station who affixed his seal on the case property.

After completion of the investigation, the accused were challenged U/s 18 of the NDPS Act. Copies of the documents relied upon by the prosecution were supplied to the respondent free of cost by the committing Magistrate. The respondent was ultimately chargesheeted U/s 18 of the NDPS Act and was ultimately acquitted as, according to the learned Additional Sessions Judge, the prosecution had failed to prove its case against the respondent beyond reasonable doubt.

In order to prove its case against the respondent, prosecution examined P.W.1. Inspector Manohar Singh, P.W. 2 A.S.I. Baldev Raj and P.W. 3 A.S.I. Harbans Lal. Report of the Chemical Examiner Ex. PF was tendered into evidence by the Public Prosecutor.

The incriminating evidence was put to the respondent in his statement recorded U/s 313 Cr.P.C. He denied the prosecution evidence and claimed to be innocent.

Mr. Mehtab Singh, learned D.A.G. Punjab has argued that the learned Additional Sessions Judge, Ferozepur has acquitted the respondent by holding firstly, that Sections 52 and 57 of the NDPS Act have not been complied with which vitiates the trial. Secondly, that nonjoining of independent witnesses had shattered the testimony of the official prosecution witnesses. He submits that mere noncompliance of Sections 52 and 57 of the NDPS Act does not vitiate the trial until and unless a prejudice is shown to have been caused to the accused in the trial of his case. He then submits that mere nonjoining of independent witnesses cannot be a ground to disbelieve the sworn testimony of police witnesses against whom no enmity is either alleged or proved on the file. He further submits that it was a case of chance recovery and thus it was not necessary to follow the mandatory provisions of Section 50 of the NDPS Act. He has relied upon Mahender Kumar v. State Panaji Goa, 1995(2) RCR 599 and State of Punjab v. Balbir Singh, JT 1994(2) SC 108 of support his aforesaid submissions.

On the other hand, learned counsel for the respondent has very vehemently argued that the mandatory provisions of Section 50 of the NDPS Act have not been complied with; noncompliance of provisions of Sections 52 and 57 has prejudiced the accused in his trial. Besides, link evidence in missing in the case as Constable Jaswant Singh through whom the sample of the opium was sent to the Chemical Examiner, has not been produced. The nonjoining of the independent witnesses particularly when the accused searched at a place which was a thoroughfare casts a shadow on the independence of the police witnesses.

After hearing the learned counsel for the parties and after going through the record with their help, we do not intend to interfere with the judgment of acquittal of the learned Additional Sessions Judge.

We do not understand as to how the State counsel has argued that it is a case of chance recovery. It is clearly stated in the ruqa Ex. PC dated 21.5.1988 prepared and signed by A.S.I. Baldev Raj P.W. 2 sent to the S.H.O., Police Station Sadar, Abohar that he had asked Kulwant Singh accused to offer his personal search as the A.S.I. suspected opium or poppy husk in his possession. It is further stated that A.S.I. Baldev Raj had asked the accused beforehand as to whether he would get his personal search conducted in the presence of some Gazetted Officer or a Magistrate. It is then stated in the ruqa itself that the accused gave in writing that he had no objection if his search was conducted by Baldev Raj.

It is significant to note that in his deposition before the trial Court, A.S.I. Baldev Raj P.W. 2, who conducted the search of the accused Kulwant Singh, did not state anywhere that he had enquired from the accused as to whether he wanted his person to be searched before the nearest gazetted officer of any of the departments mentioned in Section 42 of the Act or before the nearest Magistrate. Simply by mentioning in ruqa Ex. PC and memo Ex. PE that Kulwant Singh had been informed of his right to be searched before a nearest Gazetted Officer or Magistrate and that had be declined the offer, is not sufficient to prove that the mandatory provisions of Section 50 of the N.D.P.S. Act have been complied with. It is a specific requirement of Section 50 of the N.D.P.S. Act that when an officer duly authorised U/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. It is pertinent to note that when the statement of the accused Kulwant Singh was recorded U/s 313 Cr.P.C., he was asked the following question:

"It is in evidence against you that you were offered the opportunity of search in the presence of any Gazetted Officer or any Magistrate. You declined the same and a memo Ex.PE was prepared in this respect and upon your personal search, you were found in possession of 1 kg. of opium. 10 gms. was separated as sample. The bulk of the remaining opium and sample were made into parcel and were sealed with the seal bearing impression ''BR'' and were taken into possession vide recovery memo Ex. PA. What have you to say ? "

In his answer to that question, he has expressly replied as under:

"It is incorrect."

A Division Bench of this Court in Amrit Singh v. State of Haryana, 1990(2) Recent Criminal Reports 525 : 1990(1) Chandigarh Law Reporter 437 , has observed that to give meaning and content to the clear legislative intent underlying the safeguard provided by Section 50 of the N.D.P.S. Act, mere statement of a police officer saying that the accused was made aware of his right to be searched under the Act is not sufficient compliance of the Act. Learned Judges of the Division Bench have gone to the extent of observing that the statements made by an accused to police, in the course of investigation, are inadmissible and if such statement is a confession, it is also hit by Section 25 of the Evidence Act.

In the case in hand, even the Investigating Officer A.S.I. Baldev Raj P.W. 2 who conducted the search of the accused, did not mention in his statement at the trial that he had informed the accused about his right to be searched before a Gazetted Officer or a Magistrate and that he declined to avail of his right and in the alternative offered to get himself searched by the Investigating Officer Baldev Raj. Even if for arguments sake, we take Ex. PE as a document admissible in evidence, it had no evidentiary value. Firstly, Ex. PE has been written in Punjabi in Gurmukhi script and it has been thumbmarked by Kulwant Singh accused which necessarily signifies that Kulwant Singh was an illiterate person and he did not know how to read and writ Punjabi. Secondly the document Ex. PE is scribed by A.S.I. Baldev Raj and not attested by any witness and further it is not discernible from this document as to whether the contents of this document were read over to the accused Kulwant Singh and he had thumbmarked it after hearing and admitting its contents to be correct.

In these circumstances, we feel that no cogent and reliable evidence has been produced by the prosecution in order to show that the mandatory provisions of Section 50 of the N.D.P.S. Act were complied with. The accused was thus entitled to be acquitted on the ground of noncompliance of the mandatory provisions of Section 50 of the N.D.P.S. Act also.

Sample of the alleged recovery of opium is stated to have been sent to the Chemical Examiner through Constable Jaswant Singh. Neither Jaswant Singh Constable has been produced in the Court not his affidavit has been tendered into evidence to prove that the sample of opium was not tampered with in any manner before it reached the Chemical Examiner. It has missed an important link in the prosecution evidence to prove that the sample recovered from the accused was of opium. This defect in the prosecution evidence is also one of the important factors which strengthens the acquittal of the accused by the learned Additional Sessions Judge.

A.S.I. Baldev Raj P.W. 2 who searched the person of the accused, has clearly stated that the place of recovery from where opium was found from the search of the accused was a thoroughfare; but still he did not make any effort to join an independent witness at the time of recovery from the person of the accused.

When no independent witness has been joined by the prosecution, then certainly, the Court has been deprived of an opportunity to cross check the veracity of the official witnesses.

In these circumstances, it shall not be advisable to convict the accused on the testimony of the police witnesses only.

It is provided under Section 52 of the N.D.P.S. Act that any officer arresting a person under Section 41, Section 42, Section 43 or Section 44, shall as soon as may be, inform him of the grounds for such arrest.

P.W. 2 A.S.I. Baldev Raj who had arrested the accused, has stated at the trial that no ground of arrest was disclosed to the accused and memo in this respect was prepared. It is, thus, clear that the provisions of Section 52 of the Act were not complied with.

It is specifically provided under Section 57 of the N.D.P.S. Act that whenever any person makes any arrest or seizure under this Act, he shall, within fortyeight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. It may be noticed here that it has come in the evidence of P.W. 1 Manohar Singh Inspector, P.S. Sangat that no detailed report was submitted to him by A.S.I. Baldev Raj within 48 hours either about the arrest of the accused or about the seizure of the case property.

As discussed above, there is no proof on the record showing that the sample of the opium seized from the accused remainted untampered and safe before it reached the Chemical Examiner for analysis.

Under these circumstances, when there is no proof of the sample of opium recovered from the accused being the same which was analysed by the Chemical Examiner and when no independent witness of the recovery of the alleged incriminating article is produced, noncompliance of provisions of Sections 52 and 57 of the N.D.P.S. Act causes prejudice to the accused in the fair trial of his case.

In view of our discussion above, we do not find any infirmity in the judgment of acquittal dated 2.5.90 of the learned Additional Sessions Judge, Ferozepur. Consequently, the State appeal is dismissed as meritless.