Sukha Singh vs State of Haryana

M.L. Singhal, J.

This is an appeal against the judgment and order dated 8/9.5.1995 passed by Sh. B.M. Bajaj, Additional Sessions Judge, Karnal convicting and sentencing Sukha Singh appellant to 10 years rigorous imprisonment and to pay fine of Rs. 1,00,000/ on the charge drawn up against him under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

The prosecution case, in brief, is that on 28.9.1993, ASI Jarnail Singh of CIA Staff, Karnal along with HC Kuldeep Singh, Constable Surender Kumar and Constable Raj Kumar reached Yamuna Bandh in the area of village Manglora under the jurisdiction of P.S. Sadar, Karnal in connection with patrolling and detection of crime. Sukha Singh was found sitting on 3 gunny bags towards Yamuna side. On being questioned, he disclosed his name as Sukha Singh s/o Bir Singh, Caste Jat Singh r/o Dera Keratu, P.S. Jhinjhana, District Muzafar Nagar (U.P.). He was captured. At the outset, ASI Jarnail Singh asked him that he would like to subject the gunny bags to search and whether he would like that gunny bags to be subjected to search in the presence of a gazetted officer. Thereupon, the accused replied that he would like the gunny bags to be subjected to search in the presence of some gazetted officer. Raj Kumar, Constable was sent to bring some Gazetted Officer from headquarters, Karnal. Sh. Raj Kumar, DSP, Headquarters, Karnal came to the spot alongwith Constable Raj Kumar. In the presence of Sh. Raj Kumar, Deputy Superintendent of Police, ASI Jarnail Singh searched those gunny bags and those were found to contain poppy husk each weighing 40 kilograms. Poppy husk weighing 200 grams was taken out of each of the gunny bags. Each of the gunny bags was sealed with seal bearing impression ''JS''. Samples of poppyhusk were put in separate pieces of cloth and those pieces of cloth were made into parcels and sealed with the seal of ''JS''. Samples and gunny bags made into parcels and sealed were taken into possession vide memo Exhibit PB attested by HC Kuldip Singh, Constable Raj Kumar and DSP Raj Kumar, Headquarters, Karnal. Rough site plan Exhibit PC was prepared at the spot. Ruqa Exhibit PA was sent to the Police Station Sadar, Karnal, on the basis of which case was registered vide formal first information report Exhibit PA/1 at P.S. Sadar, Karnal. The entire case property duly sealed was produced before S.I. Dharam Pal, SHO, P.S. Sadar, Karnal. He verified the investigation and affixed his own seal ''DP'' on the case property including the sample parcels. Thereafter, the entire case property was deposited in the Malkhana. Samples were sent to the Chemical Examiner for chemical examination. Chemical Examiner vide report Exhibit PZ reported that the samples were of Poppystraw (Choorapost) of Papaver Somniferum. After investigation, Sukha Singh was challaned under Section 15 of the Narcotic Drugs and Psychotropic Substances Act,1985.

As a sequel to his commitment to the Court of Session, he was tried by Sh. B.M. Bajaj, Additional Sessions Judge, Karnal on the charge framed against him under Section 15 of the said Act.

At the conclusion of the trial, Sukha Singh was convicted and sentenced as indicated in the earlier part of this judgment.

Having felt dissatisfied with the judgment of the Additional Sessions Judge, Karnal, Sukha Singh has come up in appeal to this Court praying that the judgment of conviction and sentence recorded against him be set aside and he be acquitted.

It is contended by the learned counsel for the appellant that there has been no compliance with the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 which reads as follows :

"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 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.

(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 subsection (1).

(3)

(4)

There has thus been partial offer as accused was informed of his right to be searched before the Gazetted Officer. He was not informed that he could claim to be searched before a Magistrate also. Section 50 of this Act lays down that option should be thrown to the accused that if he wanted, he could be taken to a Gazetted Officer or a Magistrate for search. Attempt should have been to subject the gunny bags to be searched in the presence of a Magistrate. In support of this contention, he has placed reliance on Amarjit Singh and another v. State (Delhi Administration), 1995(2) RCR 578 in which the Division Bench of the Delhi High Court took the view that if an option is thrown to the accused that if he wanted, Gazetted Officer could be called to witness the search, the option given would be only partial. The mandate of Section 50 of the Act cannot be said to have been complied with when there is only partial option. It is contended by the learned counsel for the appellant that if instead of Deputy Superintendent of Police, Headquarters, Karnal, a Gazetted Officer belonging to some other department had been called in to witness the search, it could have been said that there is substantial compliance of the provisions of Section 50 of the Act. Deputy Superintendent of Police is equally interested that people contravening the provisions of this Act are convicted and sentenced.

It was held in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994(3) RCR 595 that Section 50 of this Act confers right on the person to be searched in the presence of a Gazetted Officer if he had required and the failure to provide that option would vitiate his conviction. In State of Punjab v. Balbir Singh, 1994(1) Recent Crimina Reports 735 : 1994(3) SCC 299 , the Supreme Court held "the provisions of Section 50 of this Act to be strict and mandatory, the noncompliance whereof would vitiate the conviction. Search in the presence of a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused". He should be preferably a Magistrate or a Gazetted Officer of some other department. He may be a gazetted officer of the police if no Magistrate or Gazetted Officer of other department is available. Effort should be on the part of the authorised and empowered officer to arrange search in the presence of a Magistrate or Gazetted Officer of some other department.

In this case, there is no mention in the FIR that an option was thrown to the accused to have search effected in the presence of a Magistrate.

In his crossexamination, ASI Jarnail Singh has stated that accused was also told that if he desires, search could be effected before the nearest Magistrate but the accused showed his willingness to be searched before some Gazetted Officer. There is no mention of this fact in the ruqa. He was confronted with ruqa portion B to B where there is no mention of Magistrate, but there is mention of Gazetted Officer only.

Constable Raj Kumar was sent to Karnal to bring some Gazetted Officer from there. He could be asked to bring some Gazetted Officer of some other department. In Jagdish Prashad v. State, 1994(3) RCR 601 , Delhi High Court took the view that it is incumbent upon the Investigating Officer to offer alternative choice to be searched before a Magistrate. Mere offer to get search in the presence of a Gazetted Officer is a partial offer limiting the choice and such partial offer would vitiate the trial.

It is contended by the learned counsel for the appellant that this recovery is witnessed by only ASI Jarnail Singh, Constable Raj Kumar, DSP Raj Kumar HC Kuldip Singh and not by any independent witnesses. Recovery should have been witnessed by some independent witnesses. Constable Raj Kumar could be asked to bring some Gazetted Officer, weights and scales and some public man with him. ASI Jarnail Singh PW has stated that he sent Constable Raj Kumar to the Deputy Superintendent of Police, Headquarters Karnal. He did not ask him to bring some public man with him. He has stated that HC Kuldip Singh had brought scales and weights from the shopkeeper of village Manglora. He could be instructed to bring with him at least that person who would be supplying him weights and scales. ASI Jarnail Singh has stated that he tried his best to join some independent witnesses to witness this recovery. He could not succeed in joining some independent witnesses as they showed their inability to witness this recovery. He requested Sarpanch Shamsher Singh, Baljora Singh Lamberdar and Jai Singh Member Panchayat to witness this recovery. None of them came forward to witness this recovery.

HC Kuldip Singh has stated that he brought weights from village Manglora of the denomination of 200 grams, 500 grams, 100 grams, 2 Kgs. and handle of the scale was made of iron. ASI Jarnail Singh has stated that weights were of the denomination of 200 grams, 1 Kg., 2 Kg., and 5 Kg., and handle of the scale was made of wood and it was a wooden scale. These are minor discrepancies. Minor discrepancies do not effect the fabric of the prosecution case. Minor discrepancies of course can be taken into account to judge the worth and credibility of prosecution case when the same is founded upon the uncorroborated testimony of police officials alone.

It is cardinal principle of criminal jurisprudence that "graver the offence stricter the proof". Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 provides 10 years imprisonment and fine of Rs. 1,00,000/ in the minimum to an accused of this offence. Before the Court convicts an accused of such a grave charge and sentences him to such a harsh punishment, it should hold that the charge stands proved against the accused through impregnable evidence of unimpeachable character.

In my opinion, evidence produced by the persecution to sustain this charge falls short of this standard of proof.

For the reasons given above, I am of the opinion that the learned Additional Sessions Judge unjustifiably held that the charge stood proved against the accused (appellant). This appeal succeeds and is accepted. Conviction and sentence passed upon the appellant by the Additional Sessions Judge, Karnal are set aside and he is acquitted of the charge framed against him. Fine, if paid, shall be refunded to him.