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2002 DIGILAW 580 (PNJ)

State Of Punjab v. Jaswant Singh

2002-05-22

AMARBIR SINGH GILL, V.M.JAIN

body2002
Judgment V.M.Jain, J. 1. This is an appeal against the Judgment dated 1.2.1991, passed by the Sessions Judge, Faridkot, acquitting the accused-respondent, Jaswant Singh of the charge under Section 15 of the NDPS Act (hereinafter referred to as the Act). 2. The facts of the case, in brief, are that on 15.11.1888, SI Jaswant Singh of CIA Staff, Moga, sent ruqa Ex PB, to Police Station, Mehna, to the effect that on that day, he along with other Police Officials, was coming on government vehicle in search of extremists in the area of Police Station, Mehna, and when the Police party reached the bridge, situated on the metalled road, leading from Moga to Ludhiana, in the area of village Matwani, two persons were seen (in the light of the vehicle) sitting on both sides of the bridge. On suspicion, the vehicle wsa stopped. One person, who was found stitting on the bags, which were full, was apprehended and on enquiry, he gave his name as accused, Jaswant Singh @ Hansa Singh, while the other person, who was found sitting on the bags, which were full, was also apprehended and on enquiry, he gave his name as co-accused Sukhwinder Singh @ Chhinda. Ten bags of poppy-husk were recovered from the possession of accused Hansa Singh, since he was found sitting on these bags. Each bag was found containing 45 kgs. of poppy-husk. 200 gms of poppy-husk was separated from each bag, by way of sample and thereafter, the samples and the bags containing the remaining poppy-husk, were dully sealed and were taken into possession. Since the accused, Jaswant Singh @ Hansa Singh, was found in possession of poppy-husk, without licence, he had contravened the provisions of Section 15 of the Act. On the basis of the said ruqa, Ex PB, formal FIR Ex PB/1, was registered in Police Station, Mehna, on the same day i.e. on 15.11.1988. SI Jaswant Singh prepared rough site plan. Ex PC, of the place of recocery. On return to the Police Station, the accused and the case property were produced before the SHO, who put his own seal on the case property. Thereafter, the accused was lodged in the Police lock-up while the case property was deposited with the MHC. After the receipt of the report of the Chemical Examiner, challan was submitted against the accused. 3. Thereafter, the accused was lodged in the Police lock-up while the case property was deposited with the MHC. After the receipt of the report of the Chemical Examiner, challan was submitted against the accused. 3. After hearing counsel for the parties and perusing the record, the learned Sessions Judge acquitted the accused, Jaswant Singh of the charge under Section 15 of the Act vide judgment dated 1.2.1991. Aggrieved against the same, the State of Punjab filed the present Appeal against acquittal in this Court. 4. No one had put in appearance on behalf of the accused-respondent, at the time of arguments. 5. We have heard leanrd counsel for the State (appellant) and have gone through the record carefully. 6. Learned counsel for the State of Punjab submitted before us that accused respondent was acquitted in this case on account of the non-compliance of provisions of Sections 52 and 57 of the Act and also on the ground that no independent witness was joined by the Police, at the time of recovery. It was submitted that in fact Sections 52 and 57 of the Act were not mandatory and as such the acquittal of the accused for non-compliance of the said provisions, was bad in law. Reliance was placed on the law laid down in the cases reported as State of Punjab v. Balbir Singh, 1994(1) RCR 736 and Sajan Abraham v. State of Kerala, 2001(6) SCC 692 : 2001(3) RCR(Crl.) 808 (SC). It was further submitted that merely because no independent witness was joned by the Police, by itself, would be no ground to throw-away the case of the prosecution, especially when the evidence of the Police-witnesses, namely PW-2, ASI Balbir Singh and PW-3, SI Jaswant Singh, was cogent and convincing about the recovery of the bags, containing poppy-husk, from the possession of the accused- respondent. 7. In the present case, the learned Sessions Judge, while acquitting the accused, had found that the mandatory provisions of Sections 52 and 57 of the Act had not been complied with. Otherwise also, no independent person had been joined by the prosecution in this case, particularly when they could be easily joined and thus, the non-joining of independent witness would also cast a serious doubt about the authenticity of the prosecution version. Otherwise also, no independent person had been joined by the prosecution in this case, particularly when they could be easily joined and thus, the non-joining of independent witness would also cast a serious doubt about the authenticity of the prosecution version. So far as the provisions of Sections 52 and 57 of the Act are concerned, it was held by the Honble Supreme Court in the case State of Punjab v. Balbir Singh (supra) that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the Officers, after making arrest or sizure, are by themselves not mandatory. If there is non-compliance or if there are lapses like delay, etc., then the same has to be examined to see whether any prejudice has been caused to the accused and such failure would have a bearing on the appreciation of evidence regarding the arrest or seizure as well as on merits of the case. The law laid down in this authority was reiterated by the Honble Supreme Court in the case Sajan Abraham v. State of Kerala (supra), and it was held that the Police Officer had sent copies of the FIR along with other records regarding the arrest of the accused and seizure of the contraband articles to his superior officer immediately after the registration of the case. This would constitute substantial compliance ofthe provisions of Section 57 of the Act. It was further held that Section 57 of the Act was not mandatory in nature as held in the case State of Punjab v. Balbir Singh (supra). In the present case, PW-3, SI Jaswant Singh, had categorically stated that after the recovery, he came to the Police Station and the case property and the accused were produced before the SHO, who had put his own seal on the case property and handed it back to him and thereafter he lodged the accused in the Police lock-up and deposited the case property with the MHC. Further more, a perusal of the FIR, Ex PB/1, would clearly show that copies of the FIR were sent to the Senior Officers, including the Judicial Magistrate. Under these circumstaces, it could not be said that there was any non-compliance, of the provisions of Sections 52 and 57 of the Act. Further more, a perusal of the FIR, Ex PB/1, would clearly show that copies of the FIR were sent to the Senior Officers, including the Judicial Magistrate. Under these circumstaces, it could not be said that there was any non-compliance, of the provisions of Sections 52 and 57 of the Act. Further more, as referred to above, these provisions are not mandatory in nature and nothing has come on the record to show that the accused-respondent has been prejudiced in any manner, even if the provisions of Sections 52 and 57 of the Act have not been complied with in this case. 8. So far as the non-joining of the independent witness is concerned, PW-2, ASI Balbir Singh, had stated that the accused was apprehended at about 6.30 p.m. He stated that the GT road was a very frequented road and there was always traffic on that road (in the present case the recovery is from the bridge on the GT road). He stated that even at the time of apprehension of the accused, many vehicles had passed. He stated that they had not asked anyone to join them. PW-3 SI Jaswant Singh, stated in his corss-examination that many persons were passing from that area, but no independent person was joined by him. He stated that the weights and scale were brought from village Matwani. He further stated that the abadi of village Matwani. He further stated that the abadi of village Matwani may be half a km. from the place of recovery. He stated that he did not ask the Constable, who brought the weights and scale to associate some independent and reliable person. 9. From a perusal of the above, it would be clear that even though independent witnesses were available at the time of the alleged recovery, yet no efforts whatsoever were made by the Police to join independent witnesses. Neither any passer-by was joined in the recovery proceedings, nor any person from village Matwani was joined to witness the recovery proceedings. In our opinion, on the facts and circumstances of the present case, the non-joining of independent witnesses would cause a doubt about the case of the prosecution. Neither any passer-by was joined in the recovery proceedings, nor any person from village Matwani was joined to witness the recovery proceedings. In our opinion, on the facts and circumstances of the present case, the non-joining of independent witnesses would cause a doubt about the case of the prosecution. In our opinion, the learned trial Court had rightly found that the non-joining of independent witnesses could create a doubt with regard to the case of the prosecution, on the facts and circumstances of the present case, especially when independent witnesses were available. 10. In the present case there is another infirmity in the case of the prosecution. The alleged recovery had taken place on 15.11.1988. The samples were sent to the Chemical Examiner, vide letter dated 21.11.1988, Ex PD. As per the report of the Chemical Examiner, the sample had reached the Chemical Examinder only on 6.12.1988. As per the affidavit of constable Jalaur Singh, he was handed over the samples on 21.11.1988 and on 22.11.1988 he had reached the office of the Chemical Examiner, but the parcels could not be deposited because of holiday. Thereupon, on the same day i.e. on 22.11.1988, he returned back to the Police Station and handed-over the case property to the MHC, Chint Ram. It was further alleged by Constable Jalaur Singh in his affidavit, that thereafter on 5.12.1988, the case property was handed over to him again for depositing the same in the office of the Chemical Examiner, Chandigarh and on 6.12.1988 he had gone to Chandigarh and had deposited the same in the office of the Chemical Examiner. The net result is that the cae property had reached the office of the Chemical Examiner on 6.12.1988 in respect of the recovery which was allegedly effected on 15.11.1988 i.e. after a lapse of 21 days. If the case property had been sent on 21.11.1988 to the Chemical Examiner and if 22.11.1988 was a holiday, the case property could be deposited with the Chemical Examiner on the next working day. However, for the reasons best known to the prosecution, it was only on 6.12.1988 that the case property was deposited with the Chemical Examiner. If the case property had been sent on 21.11.1988 to the Chemical Examiner and if 22.11.1988 was a holiday, the case property could be deposited with the Chemical Examiner on the next working day. However, for the reasons best known to the prosecution, it was only on 6.12.1988 that the case property was deposited with the Chemical Examiner. In our opinion, the delay of 21 days in sending the case property to the Chemical Examiner would be fatal to the case of the prosecution, especially when admittedly no independent witness was joined in the recovery proceedings and the seal used for sealing the samples remained with the Police Officials during this period. In our opinion, considering the aforesaid infirmities in the case of the prosecution, no case for converting the acquittal of the accused-respondent into conviction is made out. 11. For the reasons recorded above, the present appeal is without any merit and the same is hereby dismissed.