Suraj Mal vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed on the accusedappellant by the Additional Sessions Judge, Sonipat in Sessions Case No. 4 of 1989 (Sessions Trial No. 18 of 1989) dated 22.8.1989.

The accusedappellant was prosecuted for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the `Act'') and convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. one lac.

According to the case of the prosecution on 15.4.1989 Sub Inspector Jai Narain alongwith Police Constables was present at Bus Stand Bahalgarh in connection with excise checking. When they were checking the buses at Bahalgarh Bus Stand at about 6.30 a.m. a bus of Pepsu Roadways bearing No. PJG 7333 came from Delhi side for going towards Patiala. The said bus was stopped. The driver of the Bus Sansar Singh and conductor Hardev Singh came down from the Bus. Thereafter, Jai Narain went inside the Bus for checking the passengers and luggage. He found the accused sitting on the 2nd seat near the seat of the driver with an attache case under his feet. The Sub Inspector lifted the attache case. Since it was heavy, the S.I. suspected and, therefore, he made the accused to get down from the bus. The attache case was searched in the presence of Constable Satender Dutt and Bhim Singh and in the bottom of the attache opium was found. Thereafter, the case was registered against the accused and 4 kgs 500 gms of opium was recovered from the attache case. 20 Gms of opium was taken as a sample and the same was sealed. The remaining opium was put in the raxin bag in a thaili of cloth and separately sealed. After completion of the investigation, the accused was chargesheeted for the offence under Section 18 of the Act.

After committal of the case of the Court of Sessions, the learned Additional Sessions Judge framed a charge against the accused for the offence under Section 18 of the Act to which the accused pleaded not guilty.

In order to prove the guilt of the accused, the prosecution examined 8 witnesses and marked documents. After the closure of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. The accused denied all the allegations against him and stated that he was falsely implicated in this case.

Admittedly, no offer was made to the accused whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. The Sub Inspector himself searched the attache case which was in possession of the accused. Thus, there is a clear violation of the provisions of Section 50 of the Act. The evidence of PW1 shows that Sub Inspector Jai Narain produced before him an attachecase and then he registered the case in F.I.R. which is marked as Exhibit PA/1. PW2 is a driver of the bus. He did not identify the accused person in Court as one of those persons who were detained by the police. PW3 who is the Conductor of the Bus also did not identify the accused as one of the persons detained by the Police. Thus, the evidence of PW2 and PW3 clearly is of no help to the prosecution since both of them failed to identify the accused. The evidence of PW4 does not support the case of the prosecution. He denied that the attache case was with the accused. According to him, the attachecase was with the police party. He is a Panch witness for the alleged recovery. When he does not support the prosecution case that attachecase was with the accused and the search resulted in the recovery of the opium, it has to be necessarily held that the police could not place on record any independent witness to show that opium was recovered from the attachecase which was allegedly in possession of the accused. PW5 is a Constable. He did not say that the accused was offered to be searched in the presence of a Gazetted Officer or a Magistrate. PW6 is the Sub Inspector who effected the search and who allegedly recovered the opium from the possession of the accused. The evidence of PW7 and PW8 is not of much importance since then only received the opium at the Police Station produced by PW5.

After carefully going through the evidence of PW1, PW4 and PW5, I am unable to place any reliance on their evidence. Their evidence is not supported by the Driver or Conductor of the bus or by any other person. The accused in defence examined one witness. His evidence clearly shows that the accused was not having any luggage or attachecase with him when he boarded the bus. The evidence of DW1 is also supported by the evidence of the Driver and Conductor and also by PW2 who is an independent witness and who is cited as Panch witness for the alleged recovery.

On a consideration of the evidence on record, I am of the view that the prosecution failed to prove that the attachecase from which the opium was recovered belonged to the accused and he was holding the same. Therefore, the conviction and sentence imposed on the accusedappellant are liable to be set aside.

Apart from that, the recovery even if it is true, is hit because of non compliance with the provisions of Section 50 of the Act. In view of the decisions of the Apex Court in State of Punjab v. Balbir Singh, JT 1994(2) SC 108 and State of Punjab v. Baldev Singh, JT 1999(4) SC 595, I am of the opinion that no conviction can be based on such illegal recovery.

In view of my foregoing discussion, I am of the opinion that the accused is entitled to be acquitted of the charge framed against him.

The appeal is, accordingly, allowed, the conviction and sentence imposed on the accusedappellant by the learned Additional Sessions Judge are hereby set aside and the accused is acquitted of the charge framed against him. The bail bonds of the accused shall stand cancelled.