State of Punjab vs Tarlok Singh

V.K. Bali, J.

The State of Punjab, being aggrieved of the judgment of acquittal recorded by the Additional Sessions Judge, Faridkot, dated September 15, 1990, whereby all the accused, namely, Jang Singh, Talok Singh and Sukhpal Singh were acquitted of the charge framed against them under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, has filed the present appeal with an obvious prayer to setaside the judgment aforesaid passed by the learned Additional Sessions Judge and convict all the accused in accordance with law. The accused were found in possession of 60 gunny bags of poppy husk, each containing 40 kgs when the police party on patrol had found the accused carrying the quantity of the poppy husk, as mentioned above, in a tractortrolley on September 5, 1988 at 8.45 p.m. Prithi Singh, ASI, who was leading the patrol party, addressed a letter to the Station House Officer, Police Station, Bagha Purana on the same day, on the basis of which FIR against the accused came to be recorded. It is recited in the letter aforesaid that on September 5, 1988, ASI alongwith Kashmir Singh, ASI, Fauja Singh, ASI Puran Singh, HC No. 501, Gurcharan Singh, C. No. 366 and Baltej Singh C. No. 739 was proceeding towards village Bhekha from village Langeana Purana on metalled road in connection with patrol duty in a government jeep bearing No. PUU1883 driven by Sant Singh, C. No. 1420 and when they had reached near bridge of canal minor, a tractor bearing registration No. PBC 1743 came from the opposite side behind which a trolley was joined and bags were loaded. On seeing the police jeep, the driver of the tractor at once stopped it on getting nervous. On suspicion, he, with the help of other police officials, stopped the jeep and surrounded the tractortrolley. The driver of the tractor and one of the two persons sitting on the gunny bags loaded in the trolley, were overpowered but the 2nd person fled away. On enquiry, driver of the tractor disclosed his name as Jang Singh son of Malkiat Singh, resident of Bagha Purana and the person sitting on the gunny bags loaded in the trolley, who was overpowered, disclosed his name as Tarlok Singh @ Koka son of Santa Singh, resident of Bagha Purana. The ASI identified the person, who had fled away from the spot as Sukhpal Singh @ Goga son of Malkiat Singh resident of Bagha Purana whom he knew earlier. Before conducting the personal search, witness from the public was tried to be joined but no body was available and, therefore, the ASI conducted search of the bags loaded in the tractortrolley. From search, 60 gunny bags containing poppy husk were recovered. On weighing, the said gunny bags were found to be of 40 kgs. each and 250 grams of poppy husk was taken out as sample from each recovered bag. Thereafter, the ASI sealed the bags and samples with his seal, which, after use, was handed over to Kashmir Singh, ASI. The bags, samples and tractor trolley were taken into possession vide separate memos.

The prosecution, with a view to bring home the offence against the accused, examined Kashmir Singh, ASI as PW1, Prithi Singh, SI as PW2, Inspector Joginder Kaur, SHO P.S. Sadar Ferozepur, as PW3 and tendered some documents and affidavits on records of the case.

The accused, when examined under Section 313 of the Code of Criminal Procedure, stated that they had been falsely implicated in this case. After resultant trial, as mentioned above, accused were acquitted of the charge framed against them. The learned trial Judge recorded a finding of acquittal on various grounds inclusive of that no independent witness had been joined as also that there was noncompliance of Sections 50, 55 and 57 of the 1985 Act. It was also held that link evidence in this case was missing.

Mr. Mehtab Singh, learned Deputy Advocate General, Punjab contends that even though he may be able to persuade the Court to hold that nonjoining of independent witnesses was not fatal to the prosecution case where the police had incidentally come across the accused, being on patrol duty, and this being not a case of secret or prior information, there was no necessity to join independent witness as also that the provisions contained in Sections 55 and 57 of the 1985 Act are not mandatory and that the accused had not been able to show that any prejudice had been caused to them for noncompliance thereof, but he would not be able to convince this Court to return a finding of guilt by setting aside the judgment of the trial Judge as the provisions contained in Section 50 of the 1985 Act, which are mandatory, have not been complied with in this case. Learned counsel appearing for the defence in support of the view that provisions contained in Section 50 are mandatory, and noncompliance thereof vitiates the trial, relies upon a Division Bench judgment of this Court in Kulwant Singh and another v. Assistant Collector Customs, Crl. Appeal No. 180DB of 1993 decided on December 7, 1995. The facts of the case aforesaid reveal that on July 23, 1986, at about 6.30 p.m, a party of the Custom Preventive Staff, Amritsar, consisting of Inspectors T.R. Kaushal, Sandeep Singh and various other Custom officials, under the supervision of Piara Singh, Customs Superintendent, intercepted a truck bearing No. HRU2058 near Radha Swami Hospital on G.T. Road, Beas while the truck was on its way towards Amritsar and on its search, 11 bags containing 3.5 quintals of opium were found kept concealed under the crates of rum which were also recovered from the truck. Since the provisions of Section 50 of the 1985 Act were not complied with, the Division Bench of this Court in Kulwant Singh''s case (supra), relying upon various judgments, held that "it may be a case of search and seizure from a vehicle, the provisions of Section 50 nevertheless have to be complied with". The Court proceeded to deal with the matters as follows:

"Faced with this situation, Mr. Sharma, learned Additional Central Govt. Standing Counsel has urged that the provisions of Section 50 of the Act could not be applied where the search and seizure was not effected from the person of the accused but from some other place such as a room or a vehicle in the case before us the recovery having been made from a truck. We have considered this argument as well and find that it lacks merit. In Amarjit Singh and others v. State, 1995(2) RCR 578 , a Division Bench of the Delhi High Court, relying upon the judgment of the Supreme Court in Ali Mustaffa Abdul Rehman Moosa v. State of Kerala, 1994(3) RCR 595 repelled a similar argument by holding that even if the recovery was effected not from the person of the accused but from his possession, the provisions of Section 50 nevertheless would have to be complied with and the words "search any person" appearing in Section 50 would have to be construed as being applicable to a search made of any building, conveyance or place. This will be further evident when it is noticed that a search that is envisaged under Section 50 of the Act is to be effected in terms of Sections 41 and 43 of the Act and Sections 41 and 42 of the Act clearly envisage search and seizure from a building, conveyance or place in addition to the person of the accused."

Learned defence counsel has also relied upon a judgment of the Apex Court in Mohinder Kumar v. The State, Panaji, Goa, 1995 Crl. L.J., 2074 in support of the contention, noted above.

The facts of the present case are identical to the facts of Kulwant Singh''s case (supra). Thus, following the dictum law enunciated by a Division Bench of this Court in Kulwant Singh''s case (supra), we hold that noncompliance of the provisions contained in Section 50 of the 1985 Act is fatal to the prosecution case. Before we part with this judgment, we may mention that Kashmir Singh, PW1 stated that the poppy husk was visible even without opening the bags. If that be so, there was no question for him to have not complied with the provisions contained in Section 50 of the Act. This appeal is, thus, dismissed being devoid of any merit.