Swaran Singh vs State of Punjab

Sarojnei Saksena, J.

Accusedappellant has assailed his conviction and sentence awarded to him under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) for which he is sentenced to ten years rigorous imprisonment with a fine of Rs. 1,00,000/ and in default to further undergo rigorous imprisonment for one year.

A brief resume of the facts of the case is that on 29.12.1985 Assistant Sub Inspector Mulkh Raj alongwith Ajit Singh and Sukhwinder Singh and two other police officials was going on patrolling duty from Police Station Hariana towards Dasuya in a Government vehicle. When they reached Sikri turning at about 11 a.m., they spotted the accused coming from village Kothe Mukaddam. On seeing the police party, accused tried to retrace his steps. Suspicion arose and Assistant Sub Inspector Mulkh Raj apprehended the accused. After giving his personal search when he took the personal search of the accused 250 grams of opium found in the right fold of the pyjama. Ten grams of opium was separated as sample. Both the packets were duly sealed with seal having inscription of ''MR''. Thereafter, usual investigation was conducted on the spot. Afterwards, accused and the seized contraband were brought to the police station. Assistant Sub Inspector Mulkh Raj deposited the sealed packets with MHC of the Police Station. On 16.1.1986 the sealed sample packet was given to Constable Jagdish Pal who deposited it on that very day in the laboratory of Chemical Examiner, Chandigarh. On examination, the expert opined that it was opium as it contained 3.36% morphine. On these facts accusedappellant was charge sheeted.

Accused denied the guilt and took the plea of false implication, though, no evidence was adduced by him.

During trial, prosecution examined Sewa Ram Patwari PW1 who prepared the site plan Ex.PA, Head Constable Ajit Singh PW2 and Assistant Sub Inspector Mulkh Raj PW3 to prove the arrest, search and seizure as stated above. Affidavits of MHC Arun Kumar Ex.PF and Constable Jagdish Pal Ex.PG were tendered in evidence. Report of the Chemical Examiner Ex.PE was also tendered in evidence.

Finding the prosecution evidence cogent and reliable, the learned trial Judge held that on 29.12.1985 accused was in possession of 250 grams of opium without any licence or permit. He was accordingly convicted and sentenced.

Appellant''s learned counsel vehemently contended that in this case the mandatory provisions of Section 50 were not adhered to and, therefore, on this count alone the trial is vitiated and accused is entitled to acquittal. To buttress this argument he has relied on Saiyad Mohd Saiyad Umar Saiyed v. State of Gujarat, 1995(2) Recent CR 388 ; Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994(3) Recent CR 595 and Mohinder Kumar v. The State, Panaji, Goa, AIR 1995 SC 1157.

Learned Assistant Advocate General, Punjab, repelling the aforesaid contention submitted that since it is a case of chance recovery, provisions of Section 50 are not attracted, as it is held by the Apex Court in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 .

So far as this contention is concerned, judgments relied on by the appellant''s counsel are distinguishable on facts. In Saiyad Mohd''s case and Ali Mustaffa''s case (supra), search was made after receiving secret information that the accused was having in his possession contraband articles.

In Mohinder Kumar''s case (supra), no doubt the police party was on patrolling duty. Seeing them when the accused persons suddenly entered into the house, their conduct raised the suspicion. Investigating Officer went to their house, directed the accused persons to stay where they were and asked the Head Constable to alert the others and to arrange for panchas. On these facts, it was held that from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for Panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. While taking search of the house personal search of the accused was also taken without following the provisions of Section 50. Thus, it was held that on this count, accused is entitled to be acquitted.

In Balbir Singh''s case (supra), their Lordships of the Supreme Court clearly held that since it is a case of chance recovery, provisions of Section 50 are not attracted. In this case from the statements of Ajit Singh PW2 and Mulkh Raj PW3, it is evident that on 29.12.1985 Mulkh Raj ASI alongwith other police officials was going on patrolling duty in a Government vehicle. When they reached near Sikri turning suddenly they spotted the accused coming from village Kothe Mukhaddam. As the accused tried to retrace his steps seeing the police party, it raised the suspicion and thereupon ASI Mulkh Raj PW3 apprehended the accused. After giving his personal search, when he took personal search of the accused he recovered 250 grams of opium from his person. Thus, it is obvious that it is a case of chance recovery. Hence, I find that the mandatory provisions of Section 50 of the Act are not attracted in this case.

The appellant''s learned counsel further submitted that the search was taken at 11 a.m. on a busy public road, but still no attempt was made to join any independent witness. The learned Assistant Advocate General, Punjab contended that as suspicion arose immediately ASI Mulkh Raj PW3 apprehended the accused and after giving his personal search, he searched the person of the accused and recovered the contraband. This witness has clearly stated that at that time no public man was available at the spot. Hence, if independent witnesses are not joined at the time of search the sworn testimony of ASI Mulkh Raj PW3 and Ajit Singh Head Constable PW2 cannot be held untrustworthy simply on the ground that they are official witnesses. It is also pointed out that no animus is attributed to them to falsely implicate the accused.

The appellant''s above contention has little force. From the statements of both the prosecution witnesses it is proved beyond doubt that at the time of search and seizure no independent person was available on the spot. In crossexamination no suggestion is given that any such person was available but was not joined in the investigation. It is settled principle of evaluating the prosecution evidence that the statements of official witnesses cannot be discarded or held untrustworthy of credence simply on the ground of their official mantle if otherwise their statements are wholly reliable. Section 100(4) Cr.P.C. mandates that at the time of search and seizure independent witnesses of the locality should be joined. The purpose of this provision is to avoid false implication at the hands of official witnesses. In this case, there is no material on record to hold that these official witnesses have falsely implicated the accused. Their statements are trust worthy and even if independent witnesses are not joined their statements cannot be held to be unreliable/unbelievable.

Third contention of the learned appellant''s counsel is that mandatory provisions of Section 55 of the Act are not followed. State counsel only argued that immediately after completing the investigation on the spot, ASI Mulkh Raj PW3 brought the sealed sample to the police station and deposited it with MHC Arun Kumar and it was kept in the malkhana of the police station. Mulkh Raj ASI PW3 has stated so unequivocally.

Section 55 of the Act requires that as soon as such sample is brought to the police station it should be presented before the Station House Officer who should affix his own seal thereon and, thereafter, it should be kept in safe custody awaiting the orders of the Magistrate for its disposal. This is a mandatory provision as is held in State of Punjab v. Kulwant Singh, 1994(1) RCR(Crl.) 303 . In this case, it is further held that mere violation of these provisions will, however, neither prove fatal nor vitiate the trial unless it is shown that noncompliance of said provisions resulted in prejudice to the accused.

Appellant''s learned counsel in continuation of his above argument further submitted that in this case affidavits of MHC Arun Kumar Ex.PF and of Jagdish Lal Ex.PG were tendered in evidence by Public Prosecutor on 25.11.1986. But these deponents had not come present in the Court and no opportunity was given to the accused to crossexamine these witnesses. Further, he contends that the verification of these affidavits is not in accordance with the provisions of Section 297(2) of the Cr.P.C. Prosecution thus cannot place reliance on these affidavits. Thus, if this link evidence is held to be not reliable then there is no other evidence on record to prove that after the sample was sealed on the spot and till it reached the hands of the Chemical Examiner, the seal on this sample remained intact. Since, the trial Court has relied on this evidence, this has positively caused prejudice to the accused.

The learned Assistant Advocate General, Punjab, contended that on 25.11.1986 these affidavits were tendered in evidence in the presence of the accused and his counsel. As per the provisions of Section 296 of the Code of Criminal Procedure, no application was made by the accused that he intends to crossexamine these witnesses, they were not present in the Court. After his conviction, accused cannot be heard on this count that prejudice is thereby caused to him. He further submitted that from these affidavits, the prosecution has proved that immediately after the investigation on the spot this sample duly sealed was deposited in the police malkhana and on 16.1.1986 it was sent to the office of Chemical Examiner through Constable Jagdish Pal, till it reached the laboratory, the seal on this sample remained intact. Report of the Chemical Examiner Ex.PE also bears the endorsement that the seal on the packet was found intact and it agreed with the specimen seal sent. Hence, it cannot be held that it has caused any prejudice to the accused.

The above contention of the appellant''s learned counsel is forceful. I have held above that mandatory provisions of Section 55 of the Act are not adhered to. The affidavits of MHC Arun Kumar Ex.PF is not in accordance with the provisions of Section 297(2) Cr.P.C. He has not separately verified as to which facts are true to his knowledge and which are true to his belief and what is the source of his belief. It is also noteworthy that on 25th November, 1986, two affidavits were tendered in evidence by the prosecution. From the order sheet of that date, it is evident that they are not mentioned therein. Hence, it is difficult to believe that these affidavits were tendered in evidence in the presence of the accused and his counsel. JUDGMENT sheet is a concise statement of the proceedings conducted in a particular case on a particular day. Because of its authenticity, normally it is presumed to be correct unless rebutted. It is also evident that these deponents were not kept present for crossexamination. Thus, accused had no opportunity to assail their so called sworn testimony. In this connection, a most glaring and noteworthy feature is that when the accused was examined under Section 313 of the Code, no question was put to him with regard to this alleged link evidence. It is settled principle of criminal jurisprudence that if any material evidence is not put to the accused for giving an explanation under Section 313, prosecution cannot reply on it and conviction cannot be based thereon. Examination of accused under Section 313 is not a mere formality. It gives the accused an opportunity to explain each and every piece of evidence adduced against him. Coupled with these facts, violation of the mandatory provisions of Section 55 gains significance. All these facts taken together have definitely caused a substantial prejudice to the accused. Hence, on this court, I find that the prosecution has failed to prove beyond reasonable doubt that after the seizure of the contraband opium from the accused on 29.12.1985 till 16.1.1986 when it reached the laboratory for analysis, seal on the sample remained intact. This was a very material fact to be proved by the prosecution beyond reasonable doubt. It may be called link evidence but it is not an evidence of a very formal character as it is thought by the prosecution. I am of the considered view that on this count alone, the accused is entitled to acquittal on the basis of benefit of doubt.

Accordingly, the appeal is hereby allowed. Conviction and sentence of the accused are set aside. Fine if deposited be refunded to him.