Swaran Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed by Swaran Singh s/o Mehar Singh, r/o village Bundela, district Amritsar and has been directed against the judgment and order dated 24.9.1996, passed by the court of Addl. Sessions Judge, Amritsar, who convicted the appellant u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years each and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellant was directed to undergo R.I. for one year for having been found in possession of 2 Kgs. of opium without any licence or permit.

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

On 24.3.1993, ASI Surjit Singh in the company of HC Avtar Singh and some other police officials happened to be present in Sangam Cinema Chowk. Mukesh Kumar alias Pinka was also joined in the policy party. Thereafter, it proceeded from the side of Sangam Cinema Chowk to Ram Talai. When the police party reached near the habitation of Ram Talai, appellant Swaran Singh was found coming on foot from the opposite direction. On seeing the police, the appellant became nervous and he tried to beat a retreat. On the basis of suspicion, he was apprehended. ASI Surjit Singh told the accused that he wanted to take his search. In the meanwhile, Gurinder Singh Dhillon, DSP, came there. Though the foundation of the story of the prosecution is that after disclosing the identity by the ASI and the DSP, the search of the Jhola being carried by the appellant was taken and on search opium was found, yet at the trial, the story of the prosecution was that ASI/DSP told the accused that they had the suspicion that the accused was carrying contraband goods and whether he wanted to give his search in the presence of some gazetted officer or a Magistrate. Resultantly, the appellant reposed confidence in the DSP who took the search of the bag and found opium in it. On weighing, it came to 2 Kgs. ASI Surjit Singh separated 10 grams of opium by way of sample and made a sealed parcel thereof by using his own seal. The remaining opium was separately sealed with the same seal and the entire case property was taken into possession vide recovery memo, Ex. PC, which was attested by Gurinder Singh Dhillon, DSP, HC Mukesh Kumar and HC Avtar Singh. Accused could not produce any licence or permit for the possession of the opium. Resultantly, Ruqa, Ex.PD, was sent to the Police Station, "A" Division, Amritsar for the registration of the case and formal FIR Exh.PD/1 was recorded by SI Joginder Singh. ASI Surjit Singh prepared the rough site plan, Ex.PE of the place of recovery/arrest. He gave the grounds of arrest, Ex.PF to the accused. The case property with the seals intact was handed over to the Moharrir Head Constable on the same day. Before that, the case property was produced before Inspector Major Singh, SHO, Police Station, Ram Bagh ("A" Division); Amritsar, who resealed the same. The statements of the witnesses were recorded. The sample of the opium was sent to the office of the Chemical Examiner who vide his report, Ex.PG, declared the contents as opium and on completion of the investigation of the case, the appellant was challaned in the court of the Illaqa Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and finally committed the appellant to the court of sessions to face trial. Formal charge u/s 18 of the Act was framed by the trial court. The charge was read over the explained to the appellant, who pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined four witnesses; namely, PW1 HC Prabhdial Singh, who gave his statement by way of an affidavit, Ex.PA, Inspector Major Singh, PW2, before whom the case property was produced and who resealed the same, Gurinder Singh Dhillon, PW3, the then DSP in whose presence the recovery of the opium was effected and PW4 ASI Surjit Singh, the I.O. who sent the Ruqa and prepared the recovery memo. The statement of the accused was recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The defence of the appellant was that he was arrested from his house on 22.3.1993 and was taken to the police station. His father gave a telegram on 23.3.1993 to the Chief Minister of Punjab regarding his unlawful detention and on 24.3.1993, the present case was planted upon him.

In defence, the accused examined Mehar Singh, DW1, and Vinod Kumar, DW2. He also tendered into evidence the certified copy of the judgment dated 4.5.1994, passed by the Court of Addl. Sessions Judge, Amritsar, in FIR 10 of 1993 u/s 18 of the Act.

The learned trial court, however, convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri D.S. Pheruman, counsel for the appellant and Shri B.S. Sewak, AAG, Punjab, appearing on behalf of the State and with their assistance have gone through the record of this case.

In the Ruqa, a colour was given to the entire prosecution story as if it was purely a chance recovery. If that was so, definitely, the provisions of section 50 will not come into play as held by the Hon''ble Supreme Court in State of Punjab v. Balbir Singh, 1994(1) RCR 736 , but if the I.O. conceives a belief that the appellant had committed an offence punishable under Chapter IV of the Act, from that stage, he is supposed to comply with the provisions of section 50 of the Act and this was, again, so reiterated by the Hon''ble Supreme Court in Balbir Singh''s case (supra).

Gurinder Singh Dhillon, DSP, when appeared in the witness box before the trial court, had stated as follows :

"He was also offered to be searched from a Magistrate or from me. He expressed his faith in me and stated that he has no objection if I make his search. I carried out his search."

The statement of Gurinder Singh Dhillon was recorded u/s 161, Cr.P.C. and when confronted during the course of examination, he stated that "I do not remember if I had got recorded in my statement that I had enquired from ASI Surjit Singh as to why he has detained the accused". Further, it has come in the statement of this witness that "I had not got recorded in Ex.DA that ASI Surjit Singh had told me that the accused is suspected to be in possession of some narcotic substance."

Now, let us see, what was the statement of ASI Surjit Singh on this aspect. According to this witness, "the accused (informed) was that he is suspected to be in possession of some contraband goods". This clearly indicates that the ASI had conceived a reasonable belief that the appellant was in possession of some contraband goods punishable under Chapter IV of the Act. In these circumstances, the I.O. was supposed to comply with the provisions of Section 50 of the Act. A close scrutiny of the record shows that no written notice of search was given to the appellant. I agree with the submission of Mr. Sewak that no written notice is required. Oral notice is enough which has been given in the present case by the ASI Surjit Singh. Why Surjit Singh or Gurinder Singh Dhillon did not record the consent statement of the accused through which it has been allegedly stated by the prosecution that the appellant had reposed confidence in the police party. There is no explanation coming forth from the side of the prosecution meaning thereby that there is noncompliance of section 50 of the Act for which the benefit of doubt has to be given to the appellant. The compliance of section 50 of the Act is mandatory and if these provisions are not complied with by the prosecution or by the I.O., it vitiates the trial as well as the recovery. Things do not rest here. There are other circumstances to indicate that the opium has not been recovered in the manner as stated by the prosecution. Mukesh Kumar was, admittedly, an independent witness. He has not been examined by the prosecution. A single circumstance may not be enough for me to condemn the story of the prosecution, but if the investigation appears to be dishonest, which I will presently show, certainly it reflects upon the substantive statements of ASI Surjit Singh as well as DSP Gurinder Singh Dhillon. It is the case of the prosecution that the opium was recovered through recovery memo, Ex.PC, in the presence of HC Avtar Singh. A naked glance to this recovery memo reveals that the signatures of Avtar Singh had been obtained under different circumstances. He has signed in Punjabi script but by a different ball point pen. It can be said by the prosecution that Avtar Singh might have used his own pen. But this explanation is not cogent if examined in the light of the information memo, Ex.PF, on which document, HC Avtar Singh had again signed but this time in English. The Albd and the signatures of Avtar Singh in English on Ex.PF indicates that a different pen has been used from the pen used by Avtar Singh in putting his signatures on Ex.PC. Both the recovery memos were prepared at the spot at the same time. Both are dated 24.3.1993. In these circumstances, there could not be a separate trend of signatures on Ex.PF. There is no cogent explanation forthcoming from the side of the prosecution about this material discrepancy for which no further probe is required.

The summary of the above discussion would be that the mandatory provisions of section 50 have not been complied with by the prosecution; that there is a patent discrepancy with regard to the joining of HC Avtar Singh and that independent witness Mukesh Kumar has not been examined. The cumulative effect of these defects creates a reasonable doubt in the mind of this court about the genuineness of the prosecution story. Resultantly, I am of the considered opinion that opium has not been recovered from the possession of the appellant in the manner as deposed not it has been recovered in the presence of HC Avtar Singh and Mukesh Kumar, independent witness.

Resultantly, I allow this appeal, set aside the judgment and order of the trial court and acquit the appellant of the charge framed against him. The opium stands confiscated to the State as it is not being claimed by the appellant. Information about the acceptance of this appeal be sent to the jail authorities and the appellant shall be released forthwith, if not wanted in any other case.