Ujjaggar Singh vs Punjab State

R.L. Anand, J. (Oral)

By this judgment I dispose of Crl. Appeals 531SB (Ujjaggar Singh v. Punjab State) and 578SB (Bhupinder Singh etc. v. Punjab State), both of 1997, as in the opinion of this Court, both these appeals can be disposed of by one judgment as both these appeals have been directed against the judgment and order dated 16.7.1997, passed by the Court of the Additional Sessions Judge, Amritsar, who convicted the appellants in both the appeals, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced each one of them to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac each; in default of payment of fine, the appellants were directed to undergo R.I. for one year each.

The brief facts of the case are that on 12.8.1988 at about 6.40 P.M. the police party consisting of Ajaib Singh, Inspector, SI Rachhpal Singh, Swaran Singh, DSP, and other police officials, was present at Raikot Railway Crossing, Malerkotla. They received a secret information there that the accused Bhupinder Singh, Ujjaggar Singh, Darshan Singh and Joginder Singh had kept bags of poppy husk in the sugar cane fields of Puran Singh in the area of village Badrawan and they were selling poppy husk at that place and if a raid is conducted, heavy recovery can be effected. On this information, ruqa, Ex. P.F. was prepared by Inspector Ajaib Singh and it was sent to the police station for the registration of the case, on the basis of which formal FIR Ex. PF/1, was recorded. Thereafter, the police party went to the aforesaid place for conducting a raid and all the four appellants were found sitting on the heap of bags of poppy husk in the sugar cane fields of Puran Singh in the area of village Badrawan and all of them were arrested. In all 81 bags, each containing 40 kgs. of poppy husk, were recovered. The I.O. separated 250 grams of poppy husk from each of the bags and made a sealed parcel thereof. The remaining poppy husk was also sealed. Both the samples and the remaining bulk were sealed with the seals bearing inscription `AS''. The entire case property was taken into possession vide recovery memo, Ex. PB, which is attested by ASI Joginder Singh, independent witness Dalip Singh, DSP Swaran Singh besides the I.O. Ajaib Singh. The sample impression of the seal used was also prepared. The I.O. also prepared the rough site plan, Ex. PL, of the place of recovery. The samples of poppy husk were sent to the Chemical Examiner who vide report, Ex. PE, declared the contents as Chura of the Poppy Head and on the completion of the investigation of the case, the appellants were challaned in the court of the Area Magistrate, who supplied the copies of the documents to the appellants free of cost as required under the law and vide commitment order dated 27.2.1989, committed the accused to the court of sessions to face trial.

Vide order dated 15.3.1989, the appellants were chargesheeted under section 15 of the Act. The charge was read over and explained to the appellants, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined Dalip Singh, independent witness as PW1 who deposed that he was never joined in the investigation of this case and nothing was recovered by the police from the possession of the appellants. So much so, he even stated that he did not know the appellants at all. This witness was declared hostile and inspite of the fact that an opportunity was granted to the prosecution to crossexamine this witness, nothing has been yielded by him for the benefit of the prosecution. In crossexamination, he gave a different story altogether by stating as follows :

"I have dispute with my brotherinlaw Malkiat Singh of village Manak Majra, regarding the ownership of truck. I was got arrested with the police of PS Malerkotla by Malkiat Singh. I remained in the police custody for 10 days. Three days after my detention in police station, all the four persons now present in the Court as accused, were brought by police and kept in lock up alongwith me for many days. My thumb impression was obtained by police while I was in police custody."

Swaran Singh, SP, appeared as PW2. Constable Naib Singh and HC Gulshan Kumar, gave their statements by way of affidavits, Exs. PC and PD, respectively. I.O. Ajaib Singh appeared as PW5.

On the closure of the prosecution evidence, the statements of the accused were recorded under Section 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those circumstances and Bhupinder Singh, stated as follows :

"I was arrested from by house. Nothing was recovered from me. I have been falsely implicated in the present case. I am innocent."

The plea of Bhupinder Singh was adopted by Joginder Singh and Darshan Singh, while the stand of their coaccused Ujjaggar Singh was as follows :

"I am innocent and implicated in this case falsely by Inspector Ajaib Singh. Panchayat of village Badrawan raised protest against my implication in this case and submitted written complaints to Higher Authorities. Enquiry was conducted by Shri Beant Singh, S.P., Sangrur and he found me not guilty in the inquiry and a supplement challan was also submitted before this Hon''ble Court."

In defence, the accused examined SI Nirmal Singh, DW1, Teja Singh, DW2, Mukand Singh, DW3 and Jagdish Singh, SP (Operations) as DW4. DW4 Jagdish Singh deposed that an inquiry was conducted by Beant Singh, the then S.P. (Headquarters), and he found Ujjaggar Singh as innocent.

The learned trial Court believed the prosecution story and rejected the defence version. The appellants were convicted and sentenced in the manner as stated above and aggrieved by their conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Sarvshri K.S. Chahal (appearing for appellant Ujjaggar Singh) and Arihant Jain (appearing for the appellants Bhupinder Singh, Joginder Singh and Darshan Singh) Advocates, and Mr. S.S. Randhawa, DAG, Punjab, appearing for the State of Punjab and with their assistance have gone through the record of this case.

The learned Counsel for the appellants have made two fold submissions; firstly, that section 50 of the Act has not been complied with at all by the I.O. and, secondly, no implicit reliance can be placed on the testimony of the police officials alone especially when Dalip Singh, independent witness, has not supported the allegations of the prosecution.

On the contrary, Mr. Randhawa submitted that it is a case of huge recovery and irrespective of the fact that section 50 of the Act has not been complied with, no concession should be granted to the appellants.

I do not subscribe to the argument raised by Mr. Randhawa. The case of the prosecution is that it was a case of secret information. The police wrote a ruqa and it was sent to the police station for the registration of the case. On the way, Dalip Singh was associated but unfortunately, he did not support the allegations of the prosecution. He gave a totally different story detrimental to the interest of the prosecution. Be that as it may, even if it is assumed for the sake of arguments that Dalip Singh has been won over by the accused, still the mandatory provisions of section 50 of the Act have not been complied with in this case. There was a genuine apprehension in the mind of the I.O. that each of the appellants was in possession of huge quantity of poppy husk. In these circumstances, before taking the search of the bags, it was necessary on the part of the I.O. to serve a notice under Section 50 of the Act to each of the accused inquiring from each one of them as to whether they wanted to give the search in the presence of a gazetted officer or a Magistrate. Their statements ought to have been recorded in the presence of some independent witness in case they wanted to repose confidence in the I.O. Nothing has been done at the spot. In this view of the matter, section 50 of the Act has not been complied with in this case at all and the consequences are fatal for the prosecution as held by the Hon''ble Supreme Court in para27 of the judgment reported in State of Punjab v. Balbir Singh, 1994(1) RCR 736.

Resultantly, I allow both these appeals and acquit the appellants of the charge framed against them. The case property stands confiscated to the State and shall be destroyed according to the rules. Intimation about the acceptance of these appeals be sent to the Superintendent, Central Jail, Sangrur and the appellants shall be set at large forthwith, if not required or convicted in any other case.

Appeals allowed.