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2002 DIGILAW 732 (PNJ)

Sarabjit Singh v. State Of Punjab

2002-07-31

HEMANT GUPTA, R.L.ANAND

body2002
Judgment Hemant Gupta, J. 1. The present appeal by the State has been directed against the judgment dated 14.10.2000 passed by the Special Judge, Hoshiarpur convicting the appellants herein for an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 2. The brief facts out of which present appeal arises are that on 10.08.1997, Nirmal Singh SI/SHO of Police Station, Mahilpur was on patrol duty at Chowk Dandian. At about 6.15 am truck bearing No. HP-25-0769 came and it was stopped by the police party. Two youths came out of the truck and ran away towards Sarkandas standing in the area. Constable Raj Kumar was able to identify them as Teeta and Billa sons of Meet caste Sainsi, residents of Lakhanpur. The remaining six persons were found in the truck. The driver of the truck disclosed his name as Harbans Singh alias Lovely and remaining 5 persons disclosed their names as Sarabjit Singh, Jeeta, Rana, Pala Singh and Sokha. Inspector Nirmal Singh asked these persons as to whether they wanted their search to be effected in the presence of a Gazetted Officer or a Magistrate but they did not want themselves to be searched in the presence of a Magistrate or a Gazetted Officer and were prepared to get themselves searched from Inspector Nirmal Singh. Separate statement in the form of question and answer was recorded by Inspector Nirmal Singh and all the accused in their separate statement stated that they did not want themselves to be searched in the presence of a Gazetted Officer or a Margistrate and they have no objection if they are searched by Inspector Nirmal Singh. It has been stated that an effort was also made to associate some independent witnesses but none was available. Subsequently, Inspector Nirmal Singh along with other officials took the search of truck and it was found that it had 60 bags of cement loaded and below such 60 bags, 75 bags of Poppy Husk were found. After making arrangement for weighing scales and weights, 7 bags of Poppy Husk were weighed and each bag found containing 40 kilograms of Poppy Husk. All 75 bags were sealed by Inspector Nirmal Singh and taken into possession. Similarly cement bags were also taken into possession. Personal search of the accused was also taken and search memos prepared. After making arrangement for weighing scales and weights, 7 bags of Poppy Husk were weighed and each bag found containing 40 kilograms of Poppy Husk. All 75 bags were sealed by Inspector Nirmal Singh and taken into possession. Similarly cement bags were also taken into possession. Personal search of the accused was also taken and search memos prepared. The truck was also taken into possession vide separate recovery memos. A sum of Rs. 2200/- was recovered alongwith wrist watch from the personal search of Harbans Singh driver but nothing else from the possession of other accused. Inspector Nirmal Singh produced all the accused alongwith case property before DSP Randhir Singh. 250 grams of Poppy Husk were taken by DSP Randhir Singh in the presence of accused as samples and remaining Poppy Husk as well as the samples were sealed with the seal bearing impression RS. After filling requisite forms, the accused alongwith case property were handed over to Inspector/SHO Nirmal Singh. Then DSP Randhir Singh inquired from the accused as to whether they have any objection if he takes samples from the bags or not and then DSP Randhir Singh had taken samples. 3. On completion of investigation report under section 173 Cr.P.C. was presented. It may be stated that Darbara Singh was subsequently arrested whereas Dara alias Teeta was not arrested and was declared proclaimed offender. Harbans driver of the truck subsequently absented and was declared proclaimed offender. On the arrest of Darbara Singh, supplementary challan was presented. All the accused were jointly charge-sheeted under section 15 of the Act on 3.4.1999. 4. In order to prove its case, the prosecution examined apart from formal witnesses, constable Raj Kumar P.W.6, Inspector Nirmal Singh P.W. 7 and DSP Randhir Singh as P.W.2. Statement of the accused under section 313 Cr.P.C. were recorded. The accused denied all the allegations. However, the learned Trial Court after considering evidence on record found the charge proved and convicted the accused. The present appeal is by six convicts including Darbara Singh alias Billa. 5. We have heard Shri K.S. Dadwal, Advocate, learned counsel for the appellants and Shri S.S. Brar, Deputy Advocate General Punjab for the State of Punjab and with their assistance gone through the records of the case. 6. The present appeal is by six convicts including Darbara Singh alias Billa. 5. We have heard Shri K.S. Dadwal, Advocate, learned counsel for the appellants and Shri S.S. Brar, Deputy Advocate General Punjab for the State of Punjab and with their assistance gone through the records of the case. 6. The preliminary arguments of the learned counsel for the appellants is that there is violation of Section 50 of the Act as no notice of search as contemplated under the Act in the manner prescribed has been given and therefore, such violation is sufficient to vitiate the trial. It was argued that the appellants were not made aware that they have a right under the Act to be searched by a Gazetted Officer or a Magistrate. It was also argued that no independent witness was associated although the place of occurrence is a road and accused by many passers by. For the said proposition, the appellants relied upon 1999(2) RCR 853. The argument of the counsel for the appellants is not sustainable. Section 50 of the Act refers to search of any person under the provision of Sections 41, 42 and 43. It has been held by Honble Supreme Court in Sarjudas v. State of Gujarat, 1999(4) Recent Criminal Reports 614 as well as Kalema Tumba v. State of Maharashtra & Anr., 1999(4) RCR(Crl.) 575 : 1999(8) Supreme Court Cases 257 to the effect that as per the provisions of Section 50 of the Act only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a Gazetted Officer or a Magistrate. In the present case the contraband has been recovered in 75 bags in a truck. Therefore, it is not open to the appellants to make any grievance of search by a Gazetted Officer or a Magistrate 7. Honble Supreme Court in Kalema Tumba v. State of Maharashtra and another, (1999)8 SCC 257, held as under :- "Ms. M. Qumaruddin, learned counsel for the appellant submitted that the mandatory requirement of Section 50 of the NDPS Act was not complied with and therefore, the evidence regarding recovery and seizure of heroin should be regarded as illegal. She further submitted that the appellant could not have been convicted on the basis of that evidence. M. Qumaruddin, learned counsel for the appellant submitted that the mandatory requirement of Section 50 of the NDPS Act was not complied with and therefore, the evidence regarding recovery and seizure of heroin should be regarded as illegal. She further submitted that the appellant could not have been convicted on the basis of that evidence. It was submitted by her that the appellant was not told before the search by the Officers of the Narcotic Control Bureau that he had a right to be searched in the presence of a gazetted officer or a Magistrate. This contention deserves to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a gazetted officer or a Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a gazetted officer or a Magistrate, now stands overruled by the decision in Baldev Singh case. If a person is carrying a bag or some other article with him and a narcotic drug of a psychotropic substance is found from it, it cannot be said that it was found from his "person". It this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate." 8. Thus, we find that there is no violation of Section 50 of the Act when contraband has been recovered from the truck and not from the persons of the accused. 9. Thus, we find that there is no violation of Section 50 of the Act when contraband has been recovered from the truck and not from the persons of the accused. 9. It was next contended on behalf of the appellants that even search on the person of the accused was conducted but the offer to search in the presence of a Gazetted Officer or a Magistrate did not comply with the procedure as prescribed by Honble Supreme Court in K. Mohanan v. State of Kerala, 2000 Supreme Court Cases (Criminal) 1228. The argument of the appellants was that the appellants should have been told that under the Act they had a right to get their person searched in the presence of a Gazetted Officer or a Magistrate whereas in the present case no such offer was made. No contraband has been found on the persons of the appellants nor there is any allegation, therefore, it cannot be said that there was any violation of the provisions of Section 50 of the Act. Even otherwise, the offer was clear and unambiguous and was declined by the appellants and no prejudice has been caused to the appellants, therefore, we are of the opinion that there is no violation of the provisions of Section 50 of the Act as well. 10. The next argument on behalf of the appellants was that no knowledge can be attributed to the appellants as they were unaware of the contents of the gunny bags. As a matter of fact, the entire case of the appellants before the Special Judge was not that of unawareness of the contents but that of false implication. Once the case of the prosecution is believed that the appellants were apprehended alongwith contraband at the time of naka, therefore, the person in possession of contraband will be deemed to have knowledge of the contents of the bags as well. The reliance of the appellants on the State of Punjab v. Jaspal Singh, 2001(3) RCR(Criminal) 806 is not tenable in as much as a finding was given that as per the circumstances, the owner and the driver were unaware of the contents of the gunny bags. However, in the present case, we are unable to accept the argument of contents of the gunny bags containing Poppy Husk when the bags were tagged in a concealed manner under the cement bags. 11. However, in the present case, we are unable to accept the argument of contents of the gunny bags containing Poppy Husk when the bags were tagged in a concealed manner under the cement bags. 11. It was next contended that Darbara Singh alias Billa appellant has not been identified. No identification parade was held. It was argued that Billa alias Teeta as per prosecution case itself ran away from the spot of occurrence and constable Raj Kumar had no occasion to know the identity of the said Billa and Teeta, therefore, appellant No. 6 has been falsely roped in. 12. In the FIR itself it has been mentioned that constable Raj Kumar had identified Billa and Teeta as the persons who ran away under the cover of excessive sarkandas. Constable Raj Kumar has appeared as P.W. 6 and deposed that he was aware of the identity of Billa and Teeta as they were stopped by giving signal and their whereabouts were asked prior to the occurrence in a night checking when they were going on a scooter. Statement or the witness is natural and reliable. 13. Lastly, it was argued that no independent witness was associated at the time of search and recovery of contraband. It is the case of the prosecution that none from the public has joined investigation in spite of the efforts made. It may be noticed that the truck was stooped at 6.15 am. It is not easy to find many people to be associated with the police party at that point of time. Even otherwise generally people are not very enthusiastic in joining police, therefore, there is no reason to doubt the statement of the police officials to the effect that none of the independent persons has joined the investigation. It is a case of recovery during nakabandi. The Statements of the police officials are also statements on oath. Such Statements cannot be discarded only because the statement is by the police official. The police officials can also be truthful witnesses. However, rule of prudence suggest that the statement of the police officials be corroborated by other evidence. However, in the present case, huge quantity of contraband and recovery of a truck leaves no manner of doubt that the accused are, in fact guilty of offence under section 15 of the Act. The police officials can also be truthful witnesses. However, rule of prudence suggest that the statement of the police officials be corroborated by other evidence. However, in the present case, huge quantity of contraband and recovery of a truck leaves no manner of doubt that the accused are, in fact guilty of offence under section 15 of the Act. There is no allegation of any malice against any of the police officials or any other incriminating circumstance against any of the police officials in conduct of the investigation. No other point was urged before us. Keeping in view all the facts and circumstances as discussed above, we do no find any ground to differ with the findings recorded by the learned Special Judge and consequently dismiss the present appeal.