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2001 DIGILAW 1035 (PNJ)

Shankar Lal v. State Of Haryana

2001-09-20

R.C.KATHURIA

body2001
Judgment R.C.Kathuria, J. 1. This appeal is directed against the judgment dated 4.6.1988 passed by the Additional Sessions Judge, Sirsa, convicting the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act) and sentencing him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1,00,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of two years. 2. Put shortly, on 20.4.1986 at about 4 A.M. Sub Inspector Charanjit Singh, who was posted as Station House Officer of Police Station, Baragudha, along with Assistant Sub Inspector Brahma Nand and other police officials, held a `Nakabandi at Sahdeva Distributory on Sirsa-Dabwali G.T. Road, in the area of Village Sahuwala. At that time, they noticed accused coming from the side of Village Paniwala Mota. Finding himself suddenly confronted with the police, he hastened his steps backward. He was secured by Sub Inspector Charanjit Singh. On equiry, he disclosed his name as Shankar Lal son of Bhoora Ram resident of Khasoli, Police Station Churu, District Churu (Rajasthan). On suspicion, he was searched, which led to the recovery of a `Guthli (piece of cloth) wrapped around his waist. It was found to contain opium wrapped in a waxed paper. The opium was weighed and it was found to be four kilograms. 100 grams opium was separated as sample and put in a Dabi tin and the residue opium was put in a Peepi tin which were sealed with the seal of Sub Inspector Charanjit Singh bearing impression `CS. Seal after use was handed over to Assistant Sub Inspector Brahma Nand. Ruqa (Exhibit RE) was dispatched to the Police Station and on its basis formal First Information Report (Exhibit P.E/1) was recorded by Moharrir Head Constable Partap Singh. The Investigating Officer prepared rough site plan (Exhibit P.D.) of the place of recovery. On return to the Police Station, the Investigating Officer deposited the case property with the Moharrit Head Constable. On receipt of report of the Chemical Examiner (Exhibit P.F) indicating the contents of the sample to be opium, the accused was sent for trial, which led to his conviction and sentence, as stated above. 3. To support the charge, prosecution examined Sub Inspector Bhagwan Dass (P.W.1), Inspector Charanjit Singh (P.W.2) and Assistant Sub Inspector Brahma Nand (P.W.3). On receipt of report of the Chemical Examiner (Exhibit P.F) indicating the contents of the sample to be opium, the accused was sent for trial, which led to his conviction and sentence, as stated above. 3. To support the charge, prosecution examined Sub Inspector Bhagwan Dass (P.W.1), Inspector Charanjit Singh (P.W.2) and Assistant Sub Inspector Brahma Nand (P.W.3). Prosecution also tendered in evidence affidavits of Constable Jagdish Rai and Moharrir Head Constable Partap Singh, Exhibits P.A. and P.B, respectively, besides the report of the Chemical Examiner (Exhibit P.F.). The testimony of Sub Inspector Bhagwan Dass (P.W.1) is of formal nature as he being Station House Officer of Police Station Baragudha on 24.9.1986, had submitted the report under Section 173 of the Code of Criminal Procedure. In his affidavit Exhibit P.A, Constable Jagdish Rai had stated that on 23.4.1986, he was entrusted with the sample containing 100 grams of opium bearing the seal impression `CS by Moharrir Head Constable of the Police Station, for delivering the same in the Forensic Science Laboratory, Madhuban which he had delivered on 24.4.1988 after getting prepared docket for the same from the office of Excise and Taxation Officer, Sirsa, and receipt regarding deposit of the same was handed over by him to the Moharrir Head Constable on return to the Police Station. Moharrir Head Constable Partap Singh in his affidavit Exhibit P.B has supported the contents of the affidavit of Constable Jagdish Rai. Recovery of four kilograms of opium made from the possession of the accused when he was intercepted on 20.4.1986 in the area of Village Sahuwala stands testified by Inspector Charanjit Singh (P.W.2) and Assistant Sub Inspector Brahma Nand (P.W.3). 4. Learned counsel representing the appellant has assailed the prosecution evidence on four counts. Firstly, that there had been non-compliance of the provisions of Section 50 of the Act which has caused prejudice to the accused. Reliance was placed in this regard on the decisions rendered in Dud Nain v. State of (Union Territory) Chandigarh, 1996(3) Recent Criminal Reports 455 and Inderjit Singh v. State of Haryana, 1997 (2) Recent Criminal Reports 114. Secondly, that the seizure memo and site plan prepared by the Investigating Officer bear number of First Information Report in the same ink and handwriting which creates a doubt as to the genuineness of these documents. Secondly, that the seizure memo and site plan prepared by the Investigating Officer bear number of First Information Report in the same ink and handwriting which creates a doubt as to the genuineness of these documents. Thirdly, that no independent witnesses were deliberately associated despite the fact that the Investigating Officer was holding Naka for the purpose of detection of contraband articles. Fourthly, that the prosecution has not led any evidence with regard to the deposit of specimen seal in the Malkhana and its subsequent delivery in the Forensic Science Laboratory, Madhuban, with the sample containing opium when sent there for analysis. These submissions have been countered by learned counsel for the State. 5. Inspector Charanjit Singh (P.W.2) in his statement has maintained that after he had apprehended the accused on suspicion, he had enquired from him as to whether he wanted to give his search to him or some other higher officer, but accused replied that he had no objection if the search was carried out by Inspector Charanjit Singh. It was thereafter that search of Potli (piece of cloth) ties around the waist of the accused was done, which led to the recovery of 4 kilograms of opium. Assistant Sub Inspector Brahma Nand (P.W.3) deposed that after the arrest of the accused on suspicion, Inspector Charanjit Singh gave his search to the accused and thereafter conducted his search. It was during the search that Potli tied around the waist of the accused, which contained 4 kilograms of opium, was recovered. There is not a single word in this statement to support the testimony of Inspector Charanjit Singh (P.W.2) that he had enquired from the accused before effecting his personal search whether he wanted his search to be conducted by him (Inspector Charanjit Singh) or by some higher officer and that the accused had no objection if the search was conducted by Inspector Charanjit Singh. In the recovery-memo (Exhibit P.C), Investigating Officer has not referred to the offer made by him to the accused regarding search to be conducted by him or by some other senior officer and consequent reply given by the accused. Even there is no mention about this in the ruqa (Exhibit P.E.) sent to the Police Station on the basis of which present case was registered. Even there is no mention about this in the ruqa (Exhibit P.E.) sent to the Police Station on the basis of which present case was registered. Therefore, there is a definite attempt on the part of the Investigating Officer to rectify the lapse on his part while conducting the search. This is a material improvement made by the Investigating Officer during the course of trial and for that reason his statement in this regard cannot be given any credence. By now, it has been well-settled by the Honble Supreme Court in the case of State of Punjab v. Baldev Singh etc., AIR 1999 Supreme Court 2378 that failure to inform the accused of his right emanating from Sub-section (1) of Section 50 of the Act, may render the recovery of the contraband suspect and the conviction and sentence of the accused bad and unsustainable in law. It was pertinently observed as under : "An illicit article seized from the person of an accused, during search conducted in violation of safeguards provided in Section 50 of the Act, cannot by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/dependent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case. xx xx xx xx xx xx x. "A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act." Non-compliance of the provisions of Section 50 of the Act had acted to the prejudice of the accused because he had been denied the right to get his search conducted in terms of the requirements of Section 50 of the Act. 6 A cursory examination of seizure memo (Exhibit P.C) and site plan (Exhibit P.D.) would indicate that number of First Information Report mentioned in these documents is with different ink. 6 A cursory examination of seizure memo (Exhibit P.C) and site plan (Exhibit P.D.) would indicate that number of First Information Report mentioned in these documents is with different ink. Investigating Officer, in his statement, has explained that he inserted the First Information Report number in these documents after Constable Ram Chander, who had been sent with the ruqa to the Police Station, had returned to the spot at 6 A.M. Therefore, there is absolutely no merit in the stand taken from the side of the accused in this regard. 7. Inspector Charanjit Singh (P.W.2), during the course of his testimony, admitted that the place of recovery is located at a distance of hundred yards from the brick-kiln and three and a half miles from Village Sahuwala. He has also not disputed that he did not join any independent witness in this case. No further explanation was sought from him. The time of interception of the accused is about 4 A.M. on 20.4.1986. Assistant Sub Inspector Brahma Nand (P.W.3) has stated that a Constable was sent in a jeep to bring weighing scales from Village Sahuwala. Counsel representing the accused submitted that when a Constable could be deputed to bring weighing scales, efforts should have been made by that very Constable to procure the presence of some independent witness to witness the remaining part of the recovery proceedings. I hardly find any merit in the submission made. Undisputedly, a nakabandi was held at the place of recovery. It is not the case of the prosecution that any prior information against the accused had been received by the Investigating Officer. Under the circumstances, non-association of any independent witness cannot be pressed as a ground in favour of the accused. 8. Coming to the last submission made, examination of affidavits Exhibit P.B of Moharrir Head Constable Partap Singh and Exhibit P.A. of Constable Jagdish Rai has amply brought out that at the time when sample of 100 grams of opium along with residue opium was deposited with Moharrir Head Constable on 20.4.1986, sample of the seal `CS was also deposited with him. It has also been stated by Moharrir Head Constable Partap Singh in his affidavit Exhibit P.B that sample containing 100 grams of opium was entrusted to Constable Partap Singh on 23.4.1986, sample impression of the seal was also handed over to him. It has also been stated by Moharrir Head Constable Partap Singh in his affidavit Exhibit P.B that sample containing 100 grams of opium was entrusted to Constable Partap Singh on 23.4.1986, sample impression of the seal was also handed over to him. Constable Jagdish Rai in his affidavit Exhibit P.A. has clearly stated that he had delivered the sample as well as sample impression of the seal in question in the office of Forensic Science Laboratory, Madhuban. Report of the Chemical Examiner (Exhibit P.F) also bears the sample impression of the seal CS. Therefore, the criticism made that prosecution has failed to adduce any evidence regarding deposit of the sample impression of the seal in the Malkhana and its subsequent delivery in the office of Forensic Science Laboratory, Madhuban, is not supported by any material on record. The argument raised from the side of the accused in this regard, therefore, has to be repelled. 9. As in this case compliance of the provisions of Section 50 of the Act has not been done, recovery made has to be termed as illegal. Consequently, it has to be held that prosecution has failed to substantiate the charge against the accused. Therefore, the appeal is accepted and the order dated 4.6.1988 passed by the Additional Sessions Judge, Sirsa, is set aside and the appellant-accused is acquitted of the charge framed against him. He shall be discharged from the bail bonds furnished by him.