Sukhwinder Singh vs State of Punjab

R.L. Anand, J. (Oral)

Shri Sukhwinder Singh son of Shri Santa Singh has filed the present appeal and it has been directed against the judgment and order dated 5.2.1996 passed by the Court of Additional Sessions Judge, Amritsar, who convicted the appellant under Section 22 of the Narcotic Drugs and Psychotropic Substances Act and 3 of the Indian Passport Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac and in default of payment of fine he was further directed to undergo rigorous imprisonment for two years under Section 22 of the Narcotic Drugs and Psychotropic Substances Act. The appellant was further directed to undergo rigorous imprisonment for three months under Section 3 of the Indian Passport Act. Both the sentences were ordered to run concurrently.

The brief facts of the case can be summarised in the following manner :

On 24.12.1987 Gurdev Singh, Audit Custom Inspector, Shri K.S. Dhaliwal, Superintendent Custom along with some other officials of the Custom Department and some officials of the Police Department headed by Major Singh, DSP and some C.R.P.F. officials held a Nakabandi on the international border in the area of Udhar Dhariwal. The appellant and one Ghasita Singh (now deceased) entered into the Indian territory from the side of Pakistan. The party which was comprised of police officials, C.R.P.F. officials and Customs authorities arrested both of them. 10 packets containing heroin weighing 10 Kgs. in a bag were recovered from the appellant and 7 packets of brown sugar were recovered from Ghasita Singh deceased. Three samples, each weighing 10 grams, were taken out from every packet, and in this manner 51 samples were drawn. All the samples and 17 packets of contraband were sealed with the seal bearing inscription `MS'' of Major Singh, DSP and the custom seal bearing No. 106. The incriminating goods i.e. heroin/brown sugar were taken into possession vide recovery memos. Ex.P.A. and Ex.PE. It is the story of the prosecution that the case property and the samples were kept by Shri K.S. Dhaliwal, Superintendent Custom. 17 samples of heroin duly sealed with the seal bearing impression `MS'' and `106'' were given by Shri K.S. Dhaliwal to Shri Ashok Kumar on 11.1.1988. Ashok Kumar deposited the samples in the Chemical Laboratory, Central Revenues, New Delhi on 13.1.1988. After receiving the report Ex.PX of the Chemical Examiner appellant Sukhwinder Singh was challaned under Section 22 of the N.D.P.S. Act and Section 3 of the Indian Passport Act.

The charges were framed against the appellant under the aforesaid sections to which he pleaded not guilty and claimed trial. In order to prove the charges, the prosecution examined PW1 Ashok Kumar, PW2 Gurdev Singh, Audit Inspector, PW3 Shri R.P. Gautam, ExCommandant and closed the case.

It may be mentioned here that Investigating Officer in this case was DSP Major Singh, but unfortunately he had expired and could not be produced by the prosecution. Shri K.S. Dhaliwal, with whom the case property remained from 24.12.1987 to 11.1.1988, was given up as unnecessary.

The statement of the accused was recorded under Section 313 Cr.P.C. He denied the allegations of the prosecution and stated that he has been falsely implicated. In defence, the appellant examined DW1 Sakandar Singh, ASI and DW2 Shangara Singh.

The trial Court relied the prosecution story and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.

I have heard Shri H.S. Riar, Senior Advocate, assisted by Shri D.P.S. Kahlon, Advocate, on behalf of the appellant and Shri B.S. Sewak, AAG, Punjab, on behalf of the State.

The first submission which was raised by the learned counsel for the appellant is that the mandatory provisions of Section 50 of the N.D.P.S. Act have not been complied with. Elaborating his argument the counsel for the appellant submitted that it was a case of secret information and on the basis of secret information the police party was constituted. There was a reasonable belief in the mind of the head of the police party that the appellant and his companion Ghasita Singh were coming from Pakistan side and they were bringing narcotic drugs and in these circumstances from the stage when a reasonable belief has been conceived by the Investigating Officer, it was incumbent upon him to comply with the provisions of Section 50 of the Act. In support of his contention the learned counsel for the appellant has relied upon the judgment of the Hon''ble Supreme Court reported as 1994(1) Recent C.R. 736, State of Punjab v. Balbir Singh . My attention has been invited to para No. 27 of the judgment, where his Lordship has summed up the entire case law which was enunciated in the said judgment. On the contrary, it was submitted by Shri Sewak that the provisions of Section 50 are not applicable. It was purely a chance recovery.

After considering the rival contentions of the parties, I am of the considered opinion that it was not a case of chance recovery. Rather, it was a case of secret information giving a reasonable belief to the Investigating Officer and other members of the police party that the appellant and his companion are coming from the side of Pakistan and they will bring narcotic drugs. Their apprehensions became true with the alleged arrest of the appellant and his companion, who were allegedly carrying narcotic drugs like heroin and brown sugar. From that stage Section 50 was supposed to be complied with, which is mandatory in character as held by the Supreme Court in the case of Balbir Singh (supra).

Now it is to be seen how the proceedings of the recovery went. There is not an iota of evidence on the record that any notice was given to the appellant after his arrest informing his right under Section 50 of the Act that he could be searched in the presence of a Magistrate or a Gazetted Officer of the departments as mentioned under Section 42 of the Act. Also the Investigating Officer Major Singh has not recorded any consent statement of the appellant as to that he wanted his search by the then existing members of the party. The learned counsel appearing on behalf of the State submits that since a Gazetted Officer was already present in the party, in these circumstances it was not the bounden duty of the prosecution to serve a notice to the appellant nor it was necessary to record his statement under Section 50 of the Act. The argument of the learned counsel for the State cannot be accepted because a right, which has been created and given by the legislature in favour of an individual, cannot be defeated by saying that Gazetted Officer was already in the party. Supposing the appellant wanted that his search should be taken by a Magistrate, then in that circumstance what is the answer with the State ? There was no Magistrate in the party. In these circumstances, it cannot be said that the presence of a Gazetted Officer in the party is enough compliance of the provisions of Section 50. Once it is held and established that Section 50 has not been complied with, it renders the entire trial and recovery as illegal as held by the Hon''ble Supreme Court in that very judgment on which I have just placed reliance.

The things do not rent here. The learned counsel for the appellant has successfully assailed the prosecution story on other counts also and he submitted that the cumulative effect of all the circumstances being relied upon by the appellant makes the story of the prosecution doubtful. Supplementing his submission, Shri Riar states that in this case the prosecution was duty bound to explain the safe custody of the case property from the stage of the seizure till it reaches the office of the Chemical Examiner. In this case Shri Major Singh was the officer under whose supervision the police party was acting. Said Major Singh has since expired. In these circumstances we have to depend upon the statements of other witnesses. The evidence on the record is that at the first instance the samples of heroin and the case property remained in the possession of Sh. Dhaliwal, but unfortunately for the reasons known to the prosecution Shri Dhaliwal has not been examined in the Court nor his statement has been tendered by way of affidavit, which has deprived the appellant of a valuable right to know how the case property has been dealt with by the prosecution from the stage of its seizure upto the stage it reached the office of Chemical Examiner. Shri Dhaliwal keeps the case property with him upto 11.1.1988 and then he parts it over to Shri Ashok Kumar PW1, who deposits the case property in the office of the Chemical Examiner on 13.1.1988. A Division Bench authority of this Court has given a lot of importance about the dealing of the case property. This Court is equally aware of the law that if no prejudice has been caused to the appellant with regard to the nonhandling of the case property, on that score alone acquittal is not justified. But if everything is fishy, such single circumstance coupled with other circumstance becomes a matter of importance. In Padam Singh v. State of Haryana, 1997(4) RCR (Criminal) 172 , the Division Bench has laid down that prosecution has to prove affirmatively that right from the stage of seizure till it reached the hands of Chemical Analyst, there was no possibility to change or tampering with the material or the sample. This observation has again been reiterated in Jeeto v. State of Haryana, 1998(1) RCR (Crl.) 764 .

Both the submissions were put before the trial court also but for convenient reasons the trial court has rejected this argument of the appellant by stating that since the recovery is very heavy and the cost of this material in the international market is very high, therefore, it should be inferred readily that the recovery is genuine. The approach of the learned trial Court is not in accordance with law. Rather, the law of evidence on this aspect is `stricter the punishment greater the proof''. The prosecution in such like cases is supposed to lead evidence in such a manner so as to lend confidence in the mind of the Court about the genuineness of the recovery and about the procedure adopted by the Investigating Officer. At the cost of repetition, it is stated that in the present case the mandatory provisions of Section 50 of N.D.P.S. Act have not have not been complied with; that the link evidence is missing and it strengthens the argument of the learned counsel for the appellant that the recovery has been effected in a different manner and might be planted upon the appellant. It is for the prosecution to lead the evidence beyond reasonable doubt. Weakness of the defence cannot be availed of by the prosecution.

Resultantly, I have no other option but to accept the appeal and set aside the judgment and order of the learned trial Court. JUDGMENTed accordingly. The appellant stands acquitted of the charges framed against him. The case property stands confiscated to the State as it is not being claimed by anybody. The intimation of the acquittal of the appellant be sent to the jail authorities forthwith so that he may be set at liberty if not wanted in any other case.