Surjit Singh vs State of Punjab

V.S. Aggarwal, J.—This is an appeal filed by Surjit Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Patiala dated 27.1.1995. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). By the subsequent order of sentence, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for six months.

The relevant facts are that on 15.11.1992 Sh. Anil Kumar was Officeincharge, Police Station Samana. On the said date alongwith ASI Narinder Singh, ASI Wassan Singh and other police officials had organised a raiding party. When the police party was present at ''T'' point, Ghagga Road, Samana, secret information was received that appellant resident of village Issewal was carrying poppy husk in the bags in his tractor trolley No. PJN7399. It was also informed that he was present at Sehajpura Chowk, Samana. He could be apprehended as a result of raid.

Believing the information to be reliable, the officerincharge of the police station sent a ruqa on the basis of which formal first information report was recorded. A public witness Dalip Singh who was present and available was associated in the raiding party.

The officerincharge of the said police station, heading the raiding party proceeded towards Sehajwal Chowk. The appellant was found with the tractor trolley referred to above. The appellant was apprised of his right to be searched before a Gazetted Officer or a Magistrate. He reposed confidence in the Sub Inspector in the matter of search. His consent memo in this regard was recorded. The appellant thumbmarked the same. It was found that there were 20 bags in the trolley. Each bag was weighed and found to be containing 40 kilogram of poppy husk. From each bag two samples each weighing 250 grams were separated. The sample and the rest of the poppy husk were converted into separate parcels and sealed with the seal of ''AK''. All these packets were taken into possession vide a recovery memo. The tractor trolley was seized and taken into possession vide another recovery memo. It was found that the tractor trolley was registered in the names of the brothers of the appellant. On return to the police station, the officerincharge of the police station deposited the case property with the Malkhana Moharrir. The case property alongwith the sample parcels was also produced before the Illaqa Magistrate on 16.11.1992. The representative samples were sent for chemical analysis. It was reported that it contained poppy husk. This led to the filing of the challan in court.

Charge was framed against the appellant punishable under Section 15 of the Act to which he pleaded not guilty and claimed trial. In support of its case the prosecution examined five witnesses which included SI Anil Kumar Joshi PW2 and ASI Narinder Singh PW5, the two witnesses pertaining to recovery and other corelated proceedings at the spot. The testimonies of these two witnesses have to be discussed, hereinafter. The prosecution evidence was put to the appellant in the form of different questions to enable him to explain the facts ad circumstances appearing against him. The appellant''s case was that on 15.11.1992 he was present in his house in village Issewal. The police party headed by SI Anil Kumar Joshi came to his house. They showed their intention to take him to the police station. He called respectables of the village to tell that police is taking him forcibly. Nothing was recovered from him. Subsequently, he was implicated falsely.

In defence the appellant examined Gulzar Singh DW1, a resident of village Issewal. He stated that on 15.11.1992 he came to the house of the appellant. ASI Narinder Singh was proclaiming to be in possession of stolen articles. ASI Narinder Singh took the money that was lying in the box. The appellant was taken and subsequently falsely implicated. Baldev Singh DW2 also made a similar statement.

The learned trial court on appraisal of the evidence concluded that it has been established beyond all reasonable doubt about recovery of poppy husk from possession of the appellant. It was also here that statutory provisions of the Act have been complied with. With these findings, the impugned judgment and the order of sentence were passed.

Aggrieved by the same, the present appeal has been filed.

Anil Kumar Joshi PW2 was the first witness pertaining to the recovery of poppy husk from the person of the appellant. The witness supported the prosecution case about the secret information and the appellant having been informed that if he likes his person can be searched before a Gazetted Officer or a Magistrate. He further testified that appellant was made aware of the circumstances. The seal after use was asserted to have been given to ASI Narinder Singh, after the samples were taken from the bags and they were sealed with the seal of ''AK. During crossexamination he testified that there were no slips showing the particulars of the case on 19 bags. One loose slip was existing on one bag. According to him, there were remains of the seals on the bag but they were not decipherable. There were holes in the bags permitting leakage. The explanation was that this happened due to lapse of time. He admitted that in DDR''s copies of which were EX.DA and Ex.DB, there were no particulars of the police party and the vehicles. Even in DDR No. 22 of 15.11.1992 relating to the deposit of case property, the details have not been mentioned.

ASI Narinder Singh PW5 also supported the prosecution case and stated that when the appellant was apprehended, the officerincharge of the police station told the appellant that he suspected to be in possession of some incriminating in the bags. He is to be searched. If he likes, the search can be effected in presence of a Gazetted Officer or a Magistrate. The other part of the statement was in line with what was mentioned in the ruqa. This witness during crossexamination also admitted that out of 20 bags, there is no slip on 19 bags for identifying them. There were only some remains of the seals but the same could not be disiphered. It was admitted that at ''T'' point Sehajpura Chowk there is all type of traffic.

Learned counsel for the appellant at the outset urged that appellant was not informed about the secret information and about his right to be searched before a Gazetted Officer or a Magistrate. Therefore, there was total violation of subsection (1) of Section 50 of the Act.

The said argument in the facts of the present case indeed cannot be appreciated. It transpired from the statement of SI Anil Kumar Joshi that appellant was made aware of the circumstances before he was told that if he likes his person can be searched before a Gazetted Officer or a Magistrate. In this process the facts were conveyed to the appellant about the secret information. He cannot assert that prejudice has been caused to him or that provisions of subsection (1) of section 50 were violated.

Dalip Singh was the solitary public witness that had been joined in the raiding party. Before the learned trial court he was not examined as a witness and given up. When the solitary public witness is not examined, it necessarily does not falsify the prosecution case. But the Court has to be on its guard and extra cautious while scrutinising the evidence. It has to see as to if the official witnesses are telling the truth and can be believed. This fact would go with individual''s case.

It transpired during the course of arguments that seal after use was given to ASI Narinder Singh. The prosecution asserts that Dalip Singh public witness was also present. If Dalip Singh public witness was present, then it is not explained as to why the seal after use was not given to him. In normal circumstances, it would be given to independent witness. Could it be that he was not present at the spot ? The purpose of giving the seal to a third person is to avoid the tampering of the case property. If it was not to be given to Dalip Singh, then there should be cogent reasons forthcoming for not doing so. It is not forthcoming.

Corelated with the same facts is the importance of retaining the case property. Every attempt must be made to preserve the case property till such time the appeal or the revision, as the case may be is decided. As already mentioned above, it transpired that when the bags were produced in Court, the seals were not decipherable. There were no seals on 19 bags for identification. It was noted further that the bags were having holes to permit leakage of poppy husk. No attempt was made by the prosecution to show as to how and why damage was caused to the case property. If so, entry could well have been made, the moment it was noticed in the Roznamcha. When no such care has been taken, the possibility of the case property being tampered with, cannot be ruled out. The appellant, therefore, is entitled to the benefit of doubt as a result of the cumulative effect of the aforesaid.

For these reasons, the appeal is accepted . The Judgment and the order of sentence passed by the trial court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released if not required in any other case.