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2000 DIGILAW 877 (PNJ)

State Of Punjab v. Gurjit Singh

2000-08-08

A.S.GARG, HARJIT SINGH BEDI

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Judgment Harjit Singh Bedi, J. 1. This State appeal against acquittal arises out of the following facts :- 2. On 30th January, 1990, ASI Tirlochan Singh - PW2, who was then posted in Police Station, Sunam, received secret information to the effect that Gurjit Singh son of Joginder Singh, Pritam Singh, Gurjit Singh son of Chand Singh, Roshan Singh, Mandar Singh, Nazam Singh and Jagrup Singh, were carrying poppy husk in a truck bearing No. PAP 8468 and that if a nakabandi was held, the truck as also the accused could be apprehended. On the basis of the information, an F.I.R. Ex.PC/1 was recorded by ASI Tirlochan Singh at 0.30 a.m. on 30th January, 1990. The police, accordingly, held a nakabandi in the area of village Tolewal. At about 1.30 a.m., the truck in question was seen approaching and was signalled to stop by the police party. Two persons who were later identified as Mandar Singh and Nazam Singh accused managed to escape, whereas Gurjit Singh s/o Joginder Singh, Pritam Singh, Gurjit Singh son of Chand Singh and Roshan Singh were apprehended. PW-2 ASI Tirlochan Singh, thereafter, gave the option to the accused envisaged u/s 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter called the Act) and informed them that their search could be made in the presence of a Magistrate or a Gazetted Officer, if they so desired. The accused, however, reposed their confidence in the police officer and volunteered their search by him. The truck in question was, thereafter, searched and 30 bags of poppy husk containing 40 kg each were recovered. Samples from each of the bags were taken for analysis and the remaining poppy husk was sealed. On analysis, the Chemical Examiner found that the article recovered was poppy husk. Nazam Singh and Mandar Singh accused who had fled from the spot, were arrested on 25th February, 1990 after they had been produced before ASI Tirlochan Singh. All the accused were, accordingly, challaned for having committed an offence punishable u/S 15 of the Act, and as they pleaded not guilty, were brought to trial. 3. During the course of trial, accused Gurjit Singh son of Joginder Singh and Pritam Singh absconded and were declared proclaimed offenders vide order dated 30th November, 1990. 4. All the accused were, accordingly, challaned for having committed an offence punishable u/S 15 of the Act, and as they pleaded not guilty, were brought to trial. 3. During the course of trial, accused Gurjit Singh son of Joginder Singh and Pritam Singh absconded and were declared proclaimed offenders vide order dated 30th November, 1990. 4. The prosecution in support of its case examined ASI Major Singh - PW1, who alongwith ASI Tirlochan Singh - PW was then posted in Police Station, Sunam, had received the secret information with regard to the smuggling of poppy husk and PW-3 Inspector Jagdish Singh, the S.H.O. of Police Station, Sunam, before whom the accused and the case property had been produced after the arrest of the accused. The prosecution also tendered into evidence the report of the Chemical Examiner Ex.PG, in which it had been opined that the recovered article was poppy husk. 5. The prosecution case was then put to the accused and their statements u/s 313 of the Cr.P.C. recorded. They denied all the incriminating circumstances appearing against them and stated that they had been arrested by the police and falsely implicated thereafter. They also examined some witnesses in defence. 6. The trial Court came to the conclusion that the prosecution version that Teja Singh had been joined as an independent witness at the time of the seizure, but had been given up as having been won over, appeared to be an attempt to fill in a lacuna in the story as there was no evidence to show that Teja Singh had, in fact, been present at the nakabandi. It was also found that though, there were many shops, houses, buildings, liquor vends, a Gurdwara and the abadi of village Dharamgarh close by, yet the police had made no effort to involve any independent witness. The Court also found that the mandatory provisions of Section 50 of the Act, had not been complied with as it appeared that the option u/S 50 of the Act, had not, in fact, been given. The trial Court also accepted the defence version that the accused had been picked up from their respective villages and involved in the case. The trial Court, accordingly, ordered the acquittal of the accused. Hence the State appeal against acquittal. 7. We have very carefully gone through the reasons given by the trial Court in its judgment. The trial Court also accepted the defence version that the accused had been picked up from their respective villages and involved in the case. The trial Court, accordingly, ordered the acquittal of the accused. Hence the State appeal against acquittal. 7. We have very carefully gone through the reasons given by the trial Court in its judgment. We are of the opinion that the findings are well merited and based on the evidence adduced by the prosecution. Teja Singh, the only independent witness was given up as having been won over and no other independent witness had been associated at the time of the nakabandi. 8. We are, however, of the opinion that in view of the settled law as of now, the provisions of Section 50 of the Act, could not have been applied as the seizure was made not from the person of the accused but from a truck. We, however, find that the provisions of Section 42 of the Act, which have been held to be mandatory in State of Punjab v. Balbir Singh, 1994(1) Recent C.R. 737, have also not been complied with. Sub-section (2) of Section 42 of the Act envisages that where an information has been received by the police with regard to the fact that a narcotic could be recovered from any building or conveyance, this information was to be taken down in writing, and sent forthwith by the police officer who had taken down the information to his immediate superior officer. In the F.I.R. in which the information had been recorded by ASI Tirlochan Singh, there is a bare statement that the special reports were being sent through Swaran Singh Constable No. 1848. There is an endorsement of the Magistrate that a copy of the special report had been received at 1.30 a.m. on 30th January, 1990 but as Swaran Singh had not even been examined as a witness, there is no evidence to show that a copy of the F.I.R. had been delivered to the immediate superior officer. It has come in evidence that Inspector Jagdish Singh PW3, who was then S.H.O. of Police Station, Suman, who was the officer superior to ASI Tarlochan Singh was not even in the police station on the night in question and had been away to Amritsar and Ludhiana and had reached Police Station, Sunam at about 9 a.m. on 30th January, 1990. 9. 9. For the reasons recorded above, we find that there is no merit in this appeal. It is, accordingly, dismissed.