Sukhwinder Singh @Dulla vs State of Punjab

K.K. Srivastava, J.

This is an appeal filed against judgment dated 4.10.1995 passed by Additional Sessions Judge, Amritsar convicting the appellant Sukhwinder Singh @ Dulla under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act, 1985) and sentencing him to suffer ten years'' rigorous imprisonment and to pay a fine of Rs. 1 lac and in default of payment of fine to suffer further rigorous imprisonment for one year.

The facts giving rise to this appeal may briefly be noticed as under :

SI Harinder Singh received secret information through some informer on 13.1.1995 about the accusedappellant Sukhwinder Singh selling poppy husk, which is a narcotic banned under the Act, 1985, without holding any proper licence. Harinder Singh SI accompanied by ASI Faqir Chand and other police officials, who was present in village Dhunda at the time of receiving the secret information, reached the place situated in the bed of the river in the area of village Khakh. They found accused Sukhwinder Singh present there who tried to escape on seeing the police party reaching there but he was over powered and arrested. SI Harinder Singh interrogated him when he disclosed that he had concealed four gunny bags containing poppy husk in the bed of the river and offered to get the same recovered. SI Harinder Singh gave an offer to him that if he liked he could be searched in the presence of a Magistrate or a Gazetted Officer but accused Sukhwinder Singh reposed confidence in SI Harinder Singh. In pursuance of the disclosure statement Exhibit PA suffered by the accused Sukhwinder Singh he led SI Harinder Singh and other police officials to the place of recovery and got recovered four gunny bags from the bed of the river. Each gunny bag contained 20 kgs. of poppy husk. The accused could not produce any valid licence or permit to store the poppy husk involved in the said offence. 250 grams of poppy husk was separated as sample out of each bag and the samples so drawn were kept separately and duly sealed with the seal mark ''HS''. Recovery memo Exhibit PB, regarding the recovery was prepared and the seal after use was handed over to ASI Faqir Chand. Ruqa, Exhibit PF, was sent to the Police Station Goindwal Sahib in the Revenue District of Amritsar on the basis of which the formal FIR was recorded and the case was registered. The case was investigated by SI Harinder Singh himself who inspected the place of recovery and prepared rough site plan Exhibit PE. The samples so drawn of the poppy husk were sent for analysis to the Chemical Examiner. The report of the Chemical Examiner was received which is Exhibit PG and thereafter, investigation was completed and a challan was submitted under Section 173 Cr.P.C. Accused appeared before the concerned Magistrate, namely, Shri Hukam Chand, Sub Divisional Judicial Magistrate, Tarn Taran, who committed the accused to stand trial before the Court of Sessions under Section 15 of the Act, 1985. The accused then appeared before the Additional Sessions Judge, Amritsar who chargesheeted him under Section 15 of the Act 1985 and on denial of the charge by the accused, he was put on trial.

The prosecution led evidence of ASI Faqir Chand PW1, MHC Amarjit Singh PW2, SI Harinder Singh PW3 and closed its case.

When examined under Section 313 of Code of Criminal Procedure the accused denied the allegations made against him by the prosecution witnesses and he took a plea that he was picked up by the Police from his village 34 days prior to the date of alleged recovery of poppy husk and he was physically assaulted and his signatures were obtained forcibly on blank papers, and he was falsely implicated in this case. The accused, however, did not lead any evidence in defence. The learned Additional Sessions Judge believed the prosecution evidence and held that the testimony of the official witnesses was fit to be believed inasmuch as it was a case of chance recovery and the requirement of independent witnesses was not expected. He repelled the arguments advanced on behalf of the accused regarding the noncompliance of mandatory provisions of Sections 42 and 50 of the Act 1985 and held that the recovery had been effected by empowered Officer and it was a case of chance recovery. He held that provisions of Section 50 of the Act 1985 had been substantially complied with notwithstanding the fact that the statement of the accused was not reduced into writing regarding his reposing confidence in the SI and that he could take search of him and the place of recovery and waived his right to have the search made in the immediate presence of a Gazetted Officer or a Magistrate. Having held so, the learned trial Judge found the charge under Section 15 of the Act 1985 fully established beyond shadow of any reasonable doubt against the accused, convicted him thereunder and sentenced him to the minimum as provided under Section 15 of the Act 1985 as mentioned above.

Feeling aggrieved against the conviction and sentence imposed on him by the learned trial Judge, the accused has now come up in appeal and has challenged the correctness of the judgment convicting and sentencing him under Section 15 of the Act 1985.

I have heard the learned counsel for the appellant and learned AAG Punjabrespondent. I have perused the evidence of the prosecution witnesses with the help of the learned counsel for the appellant and have also perused the judgment of the learned trial Judge.

The learned counsel for the appellant vehemently argued that the finding of the learned Additional Sessions Judge that it was a case of chance recovery, was contrary to the facts of the case as noticed by him in the judgment itself. He has referred to the judgment of the learned trial Judge and pointed out that in the instant case SI Harinder Singh (PW3) had received a secret information regarding the accused indulging in the sale of poppy husk. The secret information was, thus, received by him well before he proceeded to apprehend and arrest the accused. He further pointed out that once the Police Officer had previous information about the accused indulging in the sale of narcotics i.e. poppy husk though he was present around the area where the suspect was reported to be indulging in the sale of poppy husk, he had an ample opportunity to send message to his superior officers and to make efforts to include independent witnesses in the case. The learned counsel cited the judgment of this Court rendered in Kashmiri Lal @ Kala v. State of Punjab, 1996(1) R.C.R. 244 where a learned Single Judge of this Court held that when independent witnesses could be joined and have not been so joined, the statements of the official witnesses have to be taken with great care. In the case before the learned Single Judge, an independent witness, namely, Rattan Singh of public was joined in the police party but during trial he was given up having been won over by the accused. In the instant case, no effort whatsoever was made of joining an independent witness. The Hon''ble Supreme Court in the case of State of Punjab v. Balbir Singh, 1994(1) R.C.R. 736 held that if an empowered officer or an authorised officer under Section 41, subsection (2) of the N.D.P.S. Act carried out a search he would be doing so under the provisions of Cr.P.C., namely, Sections 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not be per se illegal and would not vitiate the trial; however, the effects of such failure have to be borne in mind by the Court while appreciating the evidence and the circumstances of each case.

In the instant case Faqir Chand, ASI (PW1) stated that on 13.1.1995 he joined the police party headed by SI Harinder Singh when secret information had been received against the accused that he was selling poppy husk on the river bed in the area of village Khakh. The police party then raided the place and on seeing the police party he tried to run away but he was apprehended and taken into custody and on interrogation by SI Harinder Singh he suffered a disclosure statement about selling four gunny bags containing poppy husk on the bank of the river in the bushes and offered to get the same recovered. He stated about the accused leading the police party to the place of recovery and recovery of four gunny bags. He has not stated a word about any effort to join independent witnesses of the public about carrying out search and recovery. Amarjit Singh (PW2) was crossexamined with reference to Exhibit PC. SI Harinder Singh who was heading the raiding party stated that on 13.1.1995 he along with ASI Faqir Chand and other police officials was present in village Dhunda in connection with the patrolling duty when he received secret information against the accused that he was selling poppy husk. He stated that a raid was conducted at the old river bed in the area of village Khakh and found the accused present there. He tried to slip away on seeing the police party but he was apprehended on suspicion and interrogated by him after making an offer to him that if he so liked he could be searched in the presence of a Gazetted Officer or a Magistrate. He further stated that the accused told them that he did not want to be searched before either a Gazetted Officer or a Magistrate and that he himself could search him and therefore he searched the accused. In his crossexamination he stated that he did not send any ruqa for the registration of the case on the basis of secret information. He admitted about the place of recovery being an open place and accessible to all. He admitted that the case property was not produced before the Magistrate at the time when the accused was produced before him for remand. He also admitted that he did not record any statement of the accused regarding his statement when he reposed confidence in him and did not want to be searched in the presence of a Gazetted Officer or a Magistrate. He stated categorically that no Gazetted Officer was called at the spot to witness the recovery. This is the entire evidence led by the prosecution. The evidence, referred to above, clearly shows the noncompliance of the provisions of Section 100 of Code of Criminal Procedure inasmuch as no effort whatsoever was made of including independent witnesses of public before proceeding to conduct the search of the accused. Not only this, there was no compliance at all of the mandatory provisions of Section 50 of the Act 1985. The bald statement of SI Harinder Singh that the accused waived his right to have his search made in the presence of a Gazetted Officer or a Magistrate is not fit to be believed. The learned counsel for the appellant cited the judgments of this Court in support of his arguments that the bald statement of the Police Officer regarding the compliance of Section 50 of the Act 1985 without reducing any memo into writing containing the statement of the accused that he did not want to be searched before a Gazetted Officer or a Magistrate and further that he reposed confidence in the SI, is not fit to be believed and relied upon and the same would not be accepted as the compliance of provisions of Section 50 of the Act of 1985. The judgments relied on are Om Parkash v. State of Punjab, 1996(2) R.C.C. 757 , Kashmiri Lal @ Kala v. State of Punjab, 1996(1) R.C.R. 244 and State of Punjab v. Balbir Singh, 1994(1) R.C.R. 736. The Hon''ble Supreme Court in the case of State of Punjab v. Balbir Singh (supra) held that failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate would amount to noncompliance of Section 50 which is mandatory and which vitiates the trial. It was held that after being so informed, whether such person opted for such a course or not would be a question of fact. In the instant case, the bald statements of both the police officers without any corroboration in the shape of a memo containing the statement of the accused cannot be believed. The learned Single Judge in the case of Om Parkash v. State of Punjab (supra) held that where no offer in writing had been given, the statements made by the Police Officers in the witness box are the improved statements in the Court which had to be taken with a pinch of salt and it is not, thus, established that the offer contemplated under subsection (1) Section 50 of the Act 1985 was given to the appellant, and there was non compliance of the said mandatory provisions.

ASI Faqir Chand (PW 1) stated in his crossexamination that no statement of the accused with regard to his willingness to be searched in the presence of the Gazetted Officer or Illaqa Magistrate was recorded by the Investigating Officer. No Gazetted Officer was called at the spot by the Investigating Officer. That being so, the bald statements of both the police officials, namely, ASI Faqir Chand and SI Harinder Singh are nothing but improved statements in the witnesses box and the statements cannot be relied upon. Resultantly, there has been noncompliance of the mandatory provisions as contained in Section 50 of the Act, 1985 which goes to the root of the matter and vitiates the trial and renders the conviction bad in law. The appeal, thus, succeeds and is allowed. The conviction and sentence passed by the learned trial Judge on the appellant are set aside and the appellant is acquitted of the charge under Section 15 of the Act, 1985.