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2001 DIGILAW 704 (PNJ)

Mal Singh v. State Of Punjab

2001-07-18

M.L.SINGHAL

body2001
JudgmentJudgment M.L.Singhal, J. 1. Vide order dated 25.4.2000, Special Judge, Sangrur vested with the powers of trying cases under the Narcotic Drugs and & Psychotropic Substances Act, 1985 convicted Mal Singh son of Uttam Singh and sentenced him to undergo RI for 10 years and to pay fine of Rs. 1 lac in default of payment of fine, to undergo further RI for one year in case FIR No. 54 dated 5.5.1997 under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 registered at Police Station Sherpur. 2. The prosecution case in brief is that on 5.5.1997, ASI Baldev Singh of PS Sherpur heading a police party was going towards village Ennabajwa, Harike and Allall etc. in private jeep in connection with patrolling. When the police party was 1/2 km. ahead of village Ennabajwa on the kucha path, Mal Singh was sighted coming with the support of a crutch. At the sight of the police party, he turned towards his left and sat down. Police party became suspicious and they stopped their jeep. ASI Baldev Singh told the accused that he was suspecting that he was carrying some contraband with him and if he desired his search could be effected in the presence of gazetted officer or Magistrate. Accused reposed faith and confidence in the integrity and fair play of ASI Baldev Singh and stated that he did not want the presence of a Magistrate or a gazetted officer and he could go ahead and effect his search. Accused was found wearing a jacket underneath his shirt. That jacket was found containing poppy husk. Poppy husk weighed 4 kgs. Out of the recovered poppy husk, two samples each weighing 250 grams was taken out. Those samples were made into parcels and sealed with the seal bearing impression BS. Remaining poppy husk was made into other parcel which was sealed with the same seal. Seal impression Ex.P1 was prepared at the spot. Seal after use was handed over to ASI Pritam Singh. Case property was taken into possession vide memo Ex.PD attested by the witnesses. Ruqa Ex.PF was sent to the police station on the basis of which formal FIR Ex.PG was recorded. Visual site plan Ex.PH was prepared at the spot. Seal impression Ex.P1 was prepared at the spot. Seal after use was handed over to ASI Pritam Singh. Case property was taken into possession vide memo Ex.PD attested by the witnesses. Ruqa Ex.PF was sent to the police station on the basis of which formal FIR Ex.PG was recorded. Visual site plan Ex.PH was prepared at the spot. On return to the police station, case property was produced before SI Darshan Singh, SHO, PS Sherpur along with the accused who sealed all the three parcels with seal impression bearing DS. He prepared sample impression of his seal on slip Ex.P1. Case property was deposited with MHC Lakhwinder Singh. Special report about the recovery of poppy husk was sent to SP(D), Barnala as PS Sherpur falls in the jurisdiction of Police District Barnala. Samples were sent to the chemical examiner for chemical examination who found the same containing poppy husk. After investigation, accused was challaned. 3. Accused was charged under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985. He pleaded not guilty to the charge and claimed trial. On the conclusion of the trial, accused was convicted and sentenced as indicated above. 4. Accused has come up in appeal to this Court whereby he has challenged his conviction and sentence. 5. Learned counsel for the appellant submits taht there is non-compliance with the provisions of Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 in its letter and spirit. There was no public man with ASI Baldev Singh, he ought to have sent for a gazetted officer or a Magistrate for search of the accused. If the search of the accused had been effected in the presence of a gazetted officer or a Magistrate, that would have added greater assurance and solemnity to the search. 6. Recovery rests on the statements of ASI Baldev Singh etc. who are police officials. Offence is punishable with 10 year imprisonment and fine of Rs. 1 lac in the minimum. It is a cardinal rule of criminal jurisprudence that "graver the offence, the stricter the proof". There was no public man with ASI Baldev Singh. Had there been some public man with ASI Baldev Singh, it could have been believed that the accused might have reposed faith and confidence to him and stated that he could go ahead and effect his search. There was no public man with ASI Baldev Singh. Had there been some public man with ASI Baldev Singh, it could have been believed that the accused might have reposed faith and confidence to him and stated that he could go ahead and effect his search. If ASI Baldev Singh were to be fair to the accused, he should have sent for a gazetted officer or a Magistrate in whose presence he should have effected his search. It is not believable that a Head Constable was sent from the spot to the village to bring some public man with him and none came forward. Compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory. Non-compliance therewith will vitiate the recovery. 7. For the reasons given, I am of the opinion that this appeal should succeed. This appeal is accordingly allowed and the appellant is acquitted of the charge levelled against him. Fine, if paid, shall be refunded to him. He be set at liberty forthwith if not required in any other case.