State of Punjab vs Rattan Lal

S.S. Rathor, J.

On 30.11.1985 at 7.15 a.m. ASI Anokh Singh (PW2) while heading a Police Party arrested the accused in the area or Northern side of Bus Stand, Amritsar when he was carrying Jhola (Ext. P1). On search, opium wrapped in glazed paper weighing 19 Kg. and 990 Gms was recovered from the Jhola in his possession. After taking sample, the remaining opium was taken into possession, and sealed vide memo. Ext PA and attested by the witnesses. Ruqa Ex. PB was sent to the Police Station on the basis of which formal FIR Ext. PB/1 was recorded by Inspector Balwinder Singh. The case property was alleged to be deposited with the MHC of the Malkhana and on sending the sample in due course to the Chemical Examiner, the same was found to contain opium vide report Ext. PD. After completion of the investigation a report under Section 173 Cr PC alongwith the documents relied upon was submitted in the Court and copies of the same supplied to the accused. On commitment, the accused was charged under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (thereinafter called the `Act''). The accused pleaded not guilty and claimed trial.

The prosecution examined two official witnesses namely; HC Sakattar Singh (PW 1) and ASI Anokh Singh (PW 2) Affidavits Exts PE to PH of the Police officials to prove the link evidence alongwith the report of the Chemical Examiner(Ext PD) were also tendered in evidence. The other official witnesses who were members of the raiding party were given up as unnecessary. On closure of the prosecution evidence, when examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances put to him and pleaded false implication and innocence. No defence was produced. The trial court after appraisal of the evidence on record, acquitted the accused firstly on the ground that ASI Anokh Singh (PW 2) who investigated the case was not competent to seize and arrest the accused under the Act; Secondly, the investigation as well as evidence during the trial suffers from fatal infirmities as much as mandatory provisions of the Act have not been complied with and thirdly the discrepant, and interested depositions of the Police officials cannot be made the basis of conviction particularly when no independent witness from the public inspite of availability was joined and non joining of such witnesses render the prosecution story doubtful.

Against the order of acquittal, the State filed appeal which was admitted by a Division Bench of this Court vide its order dated 22.7.1988 and the same is being disposed of finally by this judgment. Admittedly the police party was going on patrol duty around the city and while on such patrol duty it was standing on Jandiala road near the Bus Stand PW1 HC Sakattar Singh made the following statement before the Court during cross examination :

"x x x x x

The place of recovery was on GT Road. The people passed through the GT Road. He remained at the spot till 12 noon. During that period,the people were going and coming but the I.O. had not tried to join any person in the investigation."

In view of this statement, it would be unsafe to place reliance on the statements of these two official witnesses. Even ASI Anokh Singh(PW1) is conspicuously silent in his statement on the point as to whether he tried to join any independent witness. A perusal of his statement shows, that as if this witness was not aware of joining some independent witness particularly in a case of present kind wherein, on proving of the guilt, deterrent punishment is called for under the Act.

Of course, the trial court has observed about the non compliance of various sections of the Act yet, for just decision of this case, it is suffice to say that the Investigating officer gave a complete go by to the provisions of Sec. 50 of the Act. U/s 50 of the Act, the Investigating Officer at the time of arrest of the accused and seizure of the article is duty bound to ask the accused if he was willing to be produced before the nearest gazetted officer of Magistrate. If this offer is not made by the Investigating Officer or nothing is made out even from the evidence that such an offer was made, it would amount to violation of Section 50 of the Act. The desirability of joining independent witnesses if available and mandatory nature of Section 50 of the Act, has been construed elaborately by a Division Bench of this court in a case reported as Amrit Singh v. State of Haryana, 1992(2) Recent criminal reports 525 . The facts and circumstances of the present case are squarely covered by the aforementioned judgment of this Court. The judgment of the trial court is factually and legally correct. A well reasoned view of the trial court does not call for any interference by this Court. Accordingly, the state appeal fails and is dismissed.