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2002 DIGILAW 639 (PNJ)

State Of Punjab v. Jalaur Singh

2002-07-08

HEMANT GUPTA, R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. State of Punjab has filed the present appeal and it has been directed against the judgment of acquittal dated 22.1.1991, passed by the Court of Additional Sessions Judge, Ludhiana, who acquitted Shri Jalaur Singh son of Ruldu Singh, respondent, in case of FIR No. 72 dated 30.5.1989, registered under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, in Police-Station, Jagraon. 2. The story of the prosecution in brief is that on 30.5.1988 at about 8.30 A.M. in the area of village Cheema, respondent Jalaur Singh was allegedly found in possession of 5 quintals 32 kgs and 500 grams of poppy husk contained in 15 bags. The alleged recovery was effected from him by Mohan Lal Assistant Sub Inspector vide memo Ex. PA after taking out a sample of 250 grams from each of the bags Ex. P.1 to Ex. P. 15 in the presence of Harsukh Dev Pal Head Constable and Surjit Singh constable who appeared as PW-1 and PW-2 in the trial Court. As the accused failed to produce any licence or permit for the possession of the poppy husk, a rukka was sent to the police-station for the registration of the case on the basis of which formal FIR Ex.PB/1 was recorded. The Investigating Officer completed the formalities of the investigation such as preparing the rough site plan of the place of the alleged recovery. He sealed the case property and the sample was sent to the office of Chemical Examiner in a sealed cover and on receiving the report of the Chemical Examiner, the accused was challenged under Section 15 of the N.D.P.S. Act, who was tried by the Additional Sessions Judge, Ludhiana. 3. In order to prove the charge, the prosecution examined as many as four witnesses namely PW-1 Head Constable Harsukh Dev Pal and PW-2 Shri Surjit Singh constable. Both the witnesses are formal and deposed on affidavits. The Investigating Officer Shri Mohan Lal, ASI appeared As PW-3 and the eye witnesses Shri Lehmber Ram Head Constable appeared as PW4. The Gazetted Officer Shri Hardeep Singh, was also examined by the prosecution as PW-5. After tendering into evidence the report of the Chemical Examiner, the prosecution closed the case. 4. The Investigating Officer Shri Mohan Lal, ASI appeared As PW-3 and the eye witnesses Shri Lehmber Ram Head Constable appeared as PW4. The Gazetted Officer Shri Hardeep Singh, was also examined by the prosecution as PW-5. After tendering into evidence the report of the Chemical Examiner, the prosecution closed the case. 4. Statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the statements of the prosecution witnesses, were put to the accused who stated that he was innocent and a false case has been planted on him. 5. When called upon to enter into his defence, the accused examined Shri Mohinder Singh Sahota, Public Prosecutor of Delhi Administration who deposed that accused was arrested on the night intervening 29/30.5.1988 and no incriminating articles were recovered from his possession. 6. The trial court recorded the finding of acquittal and gave the reasons in paras No. 8 to 12 of the impugned judgment, which are reproduced below :- 8. Recovery of five bags contained 35-1/2 kgs of each of poppy husk is sought to be proved by the evidence of two official witnesses. The time of the recovery is stated to be 8.30 A.M. and the place is thoroughfare it is not believable that no non-official witness was present around the time and place of recovery. Two officials were sent to bring weighing scale and weights from contiguously situated village but they were not asked to bring any independent person with them. These officials had brought not only a weighing scale and weights, but they also brought a tractor trolley for lifting the case property back to the police-station. The owner and driver of the tractor trolley must have come with those officials but they were not cited or examined as witnesses of the recovery. I feel that a deliberate attempt has been made by the Instigator to keep naturally available independent person away from the prosecution story for obvious reasons. Statements of official witnesses have therefore to be scrutinised with an extra amount of caution. 9. Admittedly, grounds of the arrest of the accused were not conveyed to him in writing in violation of the provisions of the Section 52(i) of Narcotic Drugs and Psychotropic Substances Act, 1985. Search of the accused was conducted by Mohan Lal Assistant Sub Inspector, after the accused is stated to have reposed confidence in him. 9. Admittedly, grounds of the arrest of the accused were not conveyed to him in writing in violation of the provisions of the Section 52(i) of Narcotic Drugs and Psychotropic Substances Act, 1985. Search of the accused was conducted by Mohan Lal Assistant Sub Inspector, after the accused is stated to have reposed confidence in him. Statement of the accused was not recorded to know if he was willing to ignore his right of getting himself searched by or in the presence of a Magistrate nor he was asked if he wanted to have himself searched by or in the presence of a Magistrate. If Mohan Lal Assistant Sub Inspector is to be believed that he had asked the accused if he wanted himself to be searched before or in the presence of a Gazetted Officer it is not understandable as why he did not ask him. If he wanted to be searched by or in the presence of a Magistrate. Separate statement of the accused regarding his right to be searched by or in the presence of a Gazetted Officer or a Magistrate was not recorded by the investigator. I am convinced from these circumstances, that oral assertion of the investigator and his witness regarding the option given to the accused to be searched by or in the presence of a Gazetted Officer or a Magistrate is only an eye wash and does not deserve to be relied upon. Further Harsukhdev Pal Singh Head Constable PW-5 had admitted that he did not open the bags and sample parcels before affixing his seal and that he had not himself withdrawn the samples of contraband. Investigator did not examine Harsukhdev Pal PW-5 under Section 161 of the Code of Criminal Procedure nor Harsukhdev Pal prepared a memo with regard to the proceedings allegedly conducted by him towards verification of the investigation. I am convinced that in this case provisions of Sections 50 and 55 of Narcotic Drugs and Psychotropic Substances Act, 1985 have been flagrantly abused. 10. I am convinced that in this case provisions of Sections 50 and 55 of Narcotic Drugs and Psychotropic Substances Act, 1985 have been flagrantly abused. 10. It is patent on record that before embarking on personal search of the accused the Investigator did not record his satisfaction to the effect that the accused could be found in possession of a contraband of Psychotropic Substances, it was only after recording such satisfaction under Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 that the Investigator could arrest the accused and conduct his search for the contraband. 11. The place of recovery is below a Sem drain over which runs a canal minor through a lift system and below all this runs the sem nala. The place between bridge of sem Nala and the sem nala is only 2-1/2 feet as stated by Mohinder Sahota DW-1 who is a Govt. official of the rank of Public Prosecutor and belongs to the village of the accused and deserves to be believed. It is not imaginable that five bags containing 35-1/2 kgs each of poppy husk could be placed under the sem nala in a space of 2-1/2 feet width so that the prosecution version is not probable. During his cross-examination Lehmber Ram Head Constable stated that the accused was apprehended while sitting on the bags but then he added that he was arrested when he tried to come down from the bags. Investigators statement is that on seeing the Police party the accused got down from the bags and tried to run away but was overpowered by them. Again even, if five bags were kept below the sem nala the accused could not have sat over those bags and he could not also run away in a small space between the bridge of sem nala and the drain itself looked from this angel (angle ?) also the prosecution case is not natural and probable. After having heard the evidence of the two witnesses on the charge, I am of the view that their statements are not trustworthy. 12. After having heard the evidence of the two witnesses on the charge, I am of the view that their statements are not trustworthy. 12. When the circumstances brought out in the discussion above are cumulatively taken into consideration, I have absolutely no doubt in my mind that not only that evidence led on the charge is insufficient, but it is also not convincing and cogent enough to connect the accused with the offence beyond doubt and the entire investigation was conducted in disregard of mandatory provisions of search and seizure under the Narcotic Drugs and Psychotropic Substances Act, 1985. It is found resultantly that charge against the accused is not proved and so Jalaur Singh accused is acquitted of the charge framed against him. The case property shall be destroyed in due course of time under the rules. The file be consigned to the record room". 7. Not satisfied with the finding of the trial Court, the State has filed the present appeal. 8. We have heard the learned counsel for the State and with his assistance have gone through the record of the case. Nobody turned up on behalf of the respondent to assist the Court. 9. The learned counsel appearing on behalf of the State vehemently submitted that it was a case of heavy recovery which was effected per chance and in these circumstances, the prosecution was not obliged to prove the recovery by examining the independent witnesses. It was also submitted that the recovery is quite heavy and it is not believable that the Investigating Officer shall plant the recovery from his personal resources. 10. We have considered both the submissions made by the counsel for the appellant and in our opinion, these are totally devoid of any merit. Greater the charge, stricter is the proof is the accepted principle of law. The initial duty is always upon the prosecution to prove the charge by producing cogent, reliable and satisfactory evidence. In such like cases, when the Legislature has provided minimum punishment of 10 years it becomes the fundamental duty of the trial Court as well as the appellate Court to see that the evidence led by the prosecution must inspire confidence in the mind of the Court. The alleged recovery is dated 30.5.1998 at 8.30 A.M. from a thoroughfare. In such like cases, when the Legislature has provided minimum punishment of 10 years it becomes the fundamental duty of the trial Court as well as the appellate Court to see that the evidence led by the prosecution must inspire confidence in the mind of the Court. The alleged recovery is dated 30.5.1998 at 8.30 A.M. from a thoroughfare. Section 51 of the N.D.P.S. Act lays down that the provisions of the Code of Criminal Procedure shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrest, searches and seizures made under this Act. Meaning thereby that the provisions of section 100 of the Code of Criminal Procedure, if they are not inconsistent with the provisions of NDPS Act, are applicable in such like cases also. As we stated earlier, that the recovery is from a thorough place at 8.30 A.M. in the month of May when number of people are expected to be on the road side, it becomes the duty of the Investigating Officer who should have made genuine endeavour for the association of the independent witness so as to inspire confidence about the alleged recovery. It has also come in evidence that the Investigating Officer deputed two officials in order to bring the scales and the weights in order to weigh the poppy husk. These two constables easily could be directed to bring the respectable person from a nearby place who could at least say that the police had recovered the incriminating article like poppy husk in his presence. No such effort has been made. If an intentional act has been committed by the Investigating Officer not to associate an independent witness in spite of the fact that he had the ample opportunity to do so, adverse inference has to be drawn against the prosecution and in favour of the accused. The non-compliance of the provisions of the Section 51 create a serious dent in the story of the prosecution. 11. In this view of the matter, we are of the considered opinion, that this appeal is totally devoid of any merit and the same is hereby dismissed. The case property stands confiscated to the State and shall be destroyed according to rules.