Teja Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Teja Singh appellant directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Sangrur dated 6.1.1995. By virtue of the impugned judgment, the appellant was held guilty of the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). Subsequently, after hearing on the question of sentence, the learned trial court sentenced the appellant to undergo rigorous imprisonment for 10 years and a fine of Rs. One lac. In default of payment of fine, he was to further undergo rigorous imprisonment for one year.

The facts of the prosecution case are that on 26.8.1990 Sub Inspector Bahadur Singh the then Incharge of Police Post, Kauhrian alongwith Constable Avtar Singh was present at the bus stop of the said place. Head Constable Nishan Singh and Constable Sukhcharan Singh met them and they all started for patrolling. They proceeded towards village Ubhia. The police party reached on the bridge of the canal minor. The appellant was seen coming from the opposite side. He was carrying a gunny bag in his hand. On seeing the police party, he tried to turn aside. On suspicion he was stopped. He was told that if he liked his person can be searched before a Gazetted Officer or a Magistrate. The offer was not accepted. The appellant reposed confidence in Sub Inspector Bahadur Singh.

The search was conducted. The appellant was carrying a gunny bag on his head. On checking it was found to be containing poppy husk. Two samples, each of 250 grams were separated. Rest of the poppy husk was weighed and was found to be 9 kilogram and 500 grams. The sample and the rest of the poppy husk were sealed with the seal ''NS''. The sealed articles were taken into possession vide recovery memo (Ex. PA).

Ruqa was sent to the police station on the basis of which formal First Information Report was recorded by Moharrir Head Constable Parshotam Lal. Rough site plan was prepared. The appellant alongwith the articles so recovered were brought to the police station. Sub Inspector Gurdev Singh was the officerincharge of the police station. SI Gurdev Singh verified the facts and affixed the seal of ''GS'' on the sample and the gunny bag. The case property was deposited in the Malkhana. Later the sample was sent for chemical analysis. On receipt of the report that it was poppy husk, report under Section 173 Cr.P.C. was submitted.

The learned Additional Sessions Judge framed a charge against the appellant for the offence punishable under Section 15 of the Act. The appellant pleaded not guilty and claimed a trial.

In support of its case prosecution examined three witnesses besides tendering the affidavits of the two formal witnesses and the report of the Chemical Examiner.

The prosecution evidence was put to the appellant in the form of different questions. The appellant denied recovery of poppy husk from his person. He pleaded his innocence but did not produce any defence.

The learned trial court on appraisal of evidence came to the conclusion that prosecution has successfully proved its case beyond all reasonable doubt and accordingly held the appellant guilty of the offence punishable under Section 15 of the Act. Subsequently, the order of sentence referred to above was passed. Hence, the present appeal.

During the course of trial prosecution had examined Head Constable Nishan Singh as PW1. He deposed before the learned trial court that the appellant was apprehended on suspicion. He was informed that if he likes his person can be searched before a Gazetted Officer or a Magistrate. He reposed confidence in ASI Bahadur Singh. On search poppy husk was recovered weighing 10 kilogram. Two samples weighing 250 grams were taken and sealed with the seal of ''NS''. The witness was crossexamined and admitted that no nonofficial witness was joined in the raiding party. The passage as per this witness was not frequently visited by other persons. The accused was sighted from a distance of 10 to 12 karams. The Constable was sent at about 4.30 p.m. for bringing weights and scales and the poppy husk was weighed in 7 lots. As per this witness the seal after use was handed over to him.

The other statement pertaining to the same fact was that of Sub Inspector Bahadur Singh PW2 who was the Investigating Officer. He added that when the appellantaccused was apprehended on suspicion, he was told that his person can be searched before a Gazetted Officer or a Magistrate. The offer was declined. He also made a similar statement pertaining to the poppy husk which need not be reproduced. When crossexamined he added that no person was joined with the police party during their stay. They were at the spot uptil 5 hours. He further stated that constable had brought the weighing scale on the spot within 10 to 12 minutes.

Learned counsel for the appellant taking advantage of this evidence urged that no public witness had been joined in the raiding party and this is a fact which in the peculiar facts would go to the root of the matter. It is not the case of the prosecution that an attempt had been made to join the public witnesses or that it did not succeed. It is also not urged that certain persons were called and they declined to join the raiding party. In fact Head Constable Nishan Singh stated that no public witness was called while the police party was on the spot for about 5 hours. It is difficult to believe that none would have passed to that side. The police party did not have the scale and the weights. A constable had been sent to fetch it. Still no public witness was called. It is, therefore, difficult to believe that public witnesses were not available or that any genuine attempt had been made to join the same. While such is the case a grave shadow of doubt looms upon the prosecution case. It becomes difficult to believe in the peculiar facts of this case the testimonies of official witnesses.

Besides that it is urged that provisions of subsection (1) of Section 50 of the Act have not been complied with. It reads :

"50. Conditions under which search of persons shall be conducted (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate."

A little controversy that earlier ensued had been set at rest by the decision of the Supreme Court in the case of The State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : 1994(3) SCC 299 . It was held that provisions are mandatory and should strictly be complied with.

While it is being asserted that the accused had been apprehended on a suspicion, therefore, there was no occasion to give the offer to the appellant that his person can be searched before a Gazetted Officer or a Magistrate. However, the evidence shows that it is the prosecution case that such an offer was given. In other words, the Investigating Officer or the members of the police party had the suspicion that the appellant may be in possession of a contraband material, otherwise there was no occasion or reason for giving such an offer to the appellantaccused. The oral evidence produced is to the effect that the offer as such was given but the appellant spurned the same. Once there was a lurking suspicion, it is not clear as to why no notice in writing was given. It has already been noted above that the prosecution case with respect to the fact that no public witness was joined has to be scrutinized with greater care. The oral shaky version set up, therefore, makes the suspicion deeper.

Furthermore it was the seal of Head Constable Nishan Singh PW1 which had been used and the witness states that after use the seal was handed back to him. In normal circumstances the seal has to be given to an independent person to avoid tampering of the sample. This is an important link evidence and in the facts of the present case, the circumstances and the material clearly show to the effect that due care and caution had not been taken.

15.For these reasons, it is obvious that it cannot be held that there was compliance of the provisions of Section 50(1) of the Act. The seal was immediately handed over to the person from whom it was taken and no independent witness had been joined. Benefit of doubt in face of the cumulative effect necessarily go to the appellant.

For these reasons, while setting asiding the judgment and the order of sentence of the learned trial Court, the appeal is accepted. It is directed that the appellant be set at liberty if not required in any other case.