State of Punjab vs Sewa Singh

S.S. Rathor, J.

Sewa Singh accused was intercepted by a police party headed by Head Constable Rai Singh (PW 1) while patrolling the area of village Rattakhera. On effecting personal search of the accused, opium wrapped in a glazed paper and being carried in a bag was recovered from the right hand of the accused and when weighed, the opium was found to be 500 grams. A sample of 10 grams was taken out of the lot. The sample and the remaining material was sealed in a separate parcel and taken into possession by the police. Rough site plan (Exhibit PB) was prepared and on the receipt of ruqa (Exhibit PC), formal FIR (Exhibit PC/1) was recorded in the police station, Lehra. The sample on being examined by the Chemical Examiner was opined to be opium vide report Exhibit PD. The accused was challaned under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 after completion of the investigation. In due course, the accused was committed to court of session for trial. The trial court framed charge under Section 18 of the said Act which he denied and claimed trial.

The prosecution examined only one witness in the court namely; Head Constable Rai Singh PW 1 to prove the recovery of opium from the possession of the accused. Affidavit of MHC Maghar Singh has also been tendered. Remaining prosecution witnesses cited in report under Section 173, Criminal Procedure Code have not been examined. When examined under Section 313, Criminal Procedure Code and after the closure of the prosecution evidence, the accused denied all the circumstances appearing against him in evidence and claimed false implication.

The trial Court acquitted the accused of the charge vide impugned judgment against which the State filed appeal which was admitted by a Division Bench of this Court vide order dated November 25, 1988. The appeal is being disposed of finally vide this judgment.

Admittedly, the opium in question was recovered from the possession of the accused on January 20, 1986 when Narcotic Drugs and Psychotropic Substances Act, 1985 had already come into operation, repealing the Opium Act, 1878. It is not disputed by the State Counsel that the Investigating Officer was to investigate under the provisions of NDPS act, 1985. Apparently, in view of this each on the part of the Investigating Officer, the entire investigation is bad in law. Even a perusal of the statement of Head Constable Rai Singh (PW 1) (only one witness examined), shows flagrant violation of the mandatory provisions of the N.D.P.S Act, 1985 particularly its Section 50 as neither any independent witness was joined in the investigation nor the accused was afforded an opportunity of his choice to be produced before a Gazetted Officer or a Magistrate at a nearby place for effecting search from his person. Desirability of joining of any independent witness and compliance of mandatory provisions of Section 50 of the Act have been considered by a Division Bench of this court in a case reported as Amrit Singh v. State of Haryana, 1990(2) Recent Criminal Reports 525. This decision is squarely applicable to the facts of the case in hand.

Even the factum of recovery of opium from the possession of the accused person does not stand proved. The prosecution story rests upon the sole statement of an official witness i.e. Investigating Officer Rai Singh (PW 1). There is nothing on the record to suggest that he made any effort to join any independent witness with him while he alongwith the police party was patrolling the area. While on patrol duty, police force is to discharge duty for detection of crime in the area. In such circumstances, ordinarily the police is required to join an independent witness to lend eredence to the investigation. Even no other police official has been examined to corroborate the statement of the Investigating Officer. In view of this, it would not be safe to place any reliance on the statement of the witness examined by the prosecution to believe that any opium was recovered by him from the possession of the accused.

The prosecution case is bound to fail on another ground. After the recovery of the opium at the spot, the Investigating Officer (PW 1) deposited the same alongwith sample prepared with MHC Maghar Singh in the Police Station, Lehra. Therefrom, the sample must have been sent through a messenger/constable to be handed over in the office of the Chemical Examiner. The prosecution was required to place evidence on record to show that this was done by a particular messenger and that when the sample was taken from the police station to the office of the Chemical Examiner there was no tampering with the sealed sample. This evidence could only be produced by examining the said constable in the court or by an affidavit duly proved by him in the Court. This evidence is certainly of material nature. In the absence of this evidence, the prosecution has failed to prove that the material recovered was opium.

The trial Court acquitted the respondent primarily on the ground that the investigation conducted by the police was bad in law because of non compliance of mandatory provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985. These observations of the trial Court are just and legal. There is no scope to interfere in the well reasoned order of the trial Court and accordingly, the state Appeal is ordered to be dismissed.