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2002 DIGILAW 1004 (PNJ)

State Of Punjab v. Jagjit Singh

2002-09-27

HEMANT GUPTA, R.L.ANAND

body2002
Judgment Hemant Gupta, J. 1. The present appeal by the State has been directed against the judgment of acquittal dated 1.7.1992 passed by Additional Sessions Judge, Barnala acquitting the respondent for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The brief facts on the basis of which the prosecution has set its case in motion (sic) the respondent are that Shiv Charan ASI of Police Station Barnala along with other police officials was going from Hondiaya towards Bathida via G.T. Road in connection with patrolling in Govt. Gypsy No. RCT-9101. When the police party crossed the bridge of Canal Minor in the revenue limits of village Handiaya, they saw a man sitting on the gunny bags in pits, on the left side of the road. The Gypsy was stopped and Shiv Charan ASI went ahead to apprehend the accused but on seeing the police party, he tried to slip away but he was apprehended with the help of police officials. The apprehended person disclosed his name as Jagjit Singh alias Mulla son of Ram Singh. ASI Shiv Charan Singh asked him that he want to take his search and his gunny bags and whether he wanted to give his search in the presence of a Gazetted Officer or a Magistrate. Jagjit Singh posed faith in the police official. Consequently, search was conducted of 5 gunny bags as per procedure on which he was sitting and poppy husk was recovered from those bags. Two samples of 250 grams each were taken from each of the bags and on weighing remaining bags were found containing 40 kilograms and 500 grams of poppy husk. Gunny bags and samples were sealed and seal bearing impression SC was applied. 3. On completion of investigation, the police prepared report under Section 173 Cr.P.C. and put the accused on trial. Accused denied the prosecution allegations and claimed trial. In support of its case, the prosecution examined P.W.1 Nazar Mohd. and P.W. 2 Gulab Singh, Head Constables. After the prosecution evidence was over, statement of accused under section 313 Cr.P.C. was recorded. 4. On completion of investigation, the police prepared report under Section 173 Cr.P.C. and put the accused on trial. Accused denied the prosecution allegations and claimed trial. In support of its case, the prosecution examined P.W.1 Nazar Mohd. and P.W. 2 Gulab Singh, Head Constables. After the prosecution evidence was over, statement of accused under section 313 Cr.P.C. was recorded. 4. The Trial court after considering evidence on record found the respondent not guilty and acquitted him holding that the mandatory provisions of Section 50 of the Act has not been complied with in as much as the statement of the accused that he desired that the search is to be conducted by the police officials cannot be deemed to be compliance of the provisions of the Act and cannot be taken on its face value without any independent corroboration. The learned trial court also found that there is no non-official corroboration to the testimony of the official witnesses about the recovery. The independent witness Santa Singh who was stated to have joined in the recovery process was given up by the Public Prosecutor as having been won over. No other independent witness was joined to witness the alleged recovery although the recovery is stated to have been effected at a busy thoroughfare at G.T. Road at about 6 a.m. 5. We have heard Shri S.S. Randhawa, Deputy Advocate General Punjab for the appellant-State of Punjab and Shri Baljit Puri, Advocate, learned counsel for the respondent and with their assistance gone through the records of the case. 6. Although the findings recorded by the trial Court regarding the compliance of the provisions of Section 50 of the Act cannot be sustained in law in view of the judgments reported as AIR 2000 SC 403, AIR 2001 SC 402 and AIR 2001 SC 1002 holding that the provisions of section 50 of the Act would be applicable only if search on "the person" is to be made. However, in the present case the poppy husk was found not on the person of the accused but was in 5 bags weighing over 40 kilograms each. Therefore, the finding regarding the violation of Section 50 of the Act is not sustainable. 7. However, we find no reason to disagree with the findings recorded by the trial Court regarding the corroboration to the testimony of official witnesses from the non-official witnesses. Therefore, the finding regarding the violation of Section 50 of the Act is not sustainable. 7. However, we find no reason to disagree with the findings recorded by the trial Court regarding the corroboration to the testimony of official witnesses from the non-official witnesses. Santa Singh who was associated at the time of recovery has been given up. The learned trial court has not found any justified reason to give up such witness. It may further be noted that the recovery was effected by ASI Shiv Charan who has not appeared as a witness as he had died but only Nazar Mohd. and Gulab Singh Head Constables were produced as witnesses. It is admitted by both the witnesses that no effort, whatsoever, was made to join any independent person. The reasoning given by the learned trial court that independent person could be found at 6 a.m. in the morning at a busy thoroughfare on the G.T. Road cannot be said to be either illegal or suffering from irregularity or illegality which may warrant us to take a different view in the present appeal against acquittal than the one taken by the trial court. The findings recorded by the Trial Court are possible findings and do not suffer from any perversity. For the reasons recorded above and in the facts and circumstances of the case, we do not consider it appropriate to interfere in the present appeal and dismiss the same.