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2003 DIGILAW 357 (PNJ)

Shambhu Ram v. State of Haryana

2003-02-26

SWATANTER KUMAR

body2003
JUDGMENT Swatanter Kumar, J. (Oral) - This appeal is directed against the judgment of conviction and order of sentence both dated 26.4.1988 vide which the learned Additional Sessions Judge, Karnal found the accused guilty of an offence under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter referred as the Act, and awarded him sentence of rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, failing which he shall undergo rigorous imprisonment for two years. 2. The version of the prosecution has been noticed by the learned Additional Sessions Judge, Karnal correctly as it appears from the record in para No. 2 of the judgment, which reads as under :- "Briefly stated the prosecution case is that on 19.1.1987 at about 6.45 P.M. Sub Inspector Rameshwar Parshad alongwith his police party including Constable Devi Ram was present near Gohana Chowk, G.T. Road, Panipat in connection with general patrolling and was having a talk with Ram Dhari PW, resident of 8 Marla Colony, Panipat that during the meanwhile the accused holding a cloth bag Ex. P2 in his right hand was seen coming from the side of Panipat. At the sight of the police party the accused retraced his steps, began to walk speedily at which the police party grew suspicious and apprehended him. Personal search of the accused was taken according to law. As a result of it 700 grams of charas wrapped in a wax paper was recovered from the aforesaid bag. The accused had no permit for the same. 10 grams of charas was separated and the remaining contents of the charas using the seal bearing the initials RP were prepared into two sealed parcels and taken into possession vide memo Ex.PC attested by Ram Dhari and Constable Devi Ram. Seal after use had been handed over to Ram Dhari and Constable Devi Ram. Investigating Officer sent ruqqa Ex. PD to the Police State for registration of the case at which formal FIR Ex.PD/1 was drawn by A.S.I. Sham Sunder, the then Duty Officer; Ex. PE is the rough site plan of the place of apprehension of the accused. Seal after use had been handed over to Ram Dhari and Constable Devi Ram. Investigating Officer sent ruqqa Ex. PD to the Police State for registration of the case at which formal FIR Ex.PD/1 was drawn by A.S.I. Sham Sunder, the then Duty Officer; Ex. PE is the rough site plan of the place of apprehension of the accused. After the spot investigation, the Investigating Officer accompanied by the accused went to the Police Station and produced the latter and also the case property before Inspector Baljit Singh, the then Station House Officer, Police Station City, Panipat; sealed parcel Ex.P1 containing the remaining contents of charas and also the sealed sample parcel had been sealed by Inspector Baljit Singh with his own seal bearing the initials BS. The case property was deposited with the MHC concerned. Lateron the sealed sample parcel alongwith the seal impression of the seals used had been sent to the Chemical Examiner who vide his report Ex.PF had found the contents to be charas. The case was investigated and after completion of Investigation the present challan was put up in the court to give the accused a trial for the above-said offence." 3. The appellant was committed to fact trial. After completion of prosecution evidence, statement of the accused under Section 313 of Criminal Procedure Code was recorded in which he denied all incriminating evidence against him and submitted that he was falsely implicated. However, the learned trial Court found the accused guilty of being in unlawful possession of 700 grams of Charas and punished him as afore-noticed. 4. Learned counsel for the appellant has argued that the only independent witness Ram Dhari in whose presence the alleged recovery was made from accused has not been examined before the learned trial Court. He further states that as per the statement of the Investigating Officer himself it is not a case of chance recovery and once that was his view, there had to be strict compliance of the provisions of Section 50 of the Act. Lastly, he contended that there are serious contradictions in regard to compliance of the statutory provisions and even on merits of the case there were material contradictions in the statements of two witnesses i.e. PW3 and PW4. 5. There is substance in what has been argued on behalf of the accused. Lastly, he contended that there are serious contradictions in regard to compliance of the statutory provisions and even on merits of the case there were material contradictions in the statements of two witnesses i.e. PW3 and PW4. 5. There is substance in what has been argued on behalf of the accused. Ram Dhari PW was not examined and was given up before the learned trial Court as having been won over. This by itself cannot help the accused to a great extent. At best it will be just a relevant factor which the Court may take note of amongst other facts and circumstances of this case. 6. The present case of the prosecution certainly is not one of chance recovery. In this regard reference can be made to the statement of PW 4 Sub Inspector Rameshwar Parshad where in his examination-in-chief he stated as under :- "The accused was carrying a bag in his hand. Person of the accused was searched. Before searching his person, he had been told that his personal search, if he so desired, could be taken before the DSP Panipat but he declined the same saying that he had no objection in case his personal search was taken by me. As a result of the personal search of the accused he was found carrying charas in the said bag. It was weighed and was found to be 700 grams." In his cross-examination he further stated that Ram Dhari PW had met them at Gohana Chowk itself. Ram Dhari was known to the Investigating Officer personally. The Investigating Officer had carried weighing scale and weight. He was fully equipped for conduct search upon the accused. Since the Investigating Officer knew Ram Dhari personally and he had participated as an independent witness in the entire process of recovery and had even signed recovery memos, it hardly stand to reason how the said witness could be given up before the Court as won over. 7. According to PW4 and offer was given to the accused while PW 3 who is all along stated to be with PW 4 has nowhere stated in his examination-in-chief or otherwise that any offer was given to the accused. Learned counsel for the accused has specifically put to the investigating officer in his cross examination that no such offer was given and in fact he had not reduced anything in writing in that regard. Learned counsel for the accused has specifically put to the investigating officer in his cross examination that no such offer was given and in fact he had not reduced anything in writing in that regard. Further, admittedly, the Investigating Officer remained at the place of occurrence for more than two hours, which was a crowded place at Gohana Chowk, but still he did not associate any other person/independent witness in his complete investigation. This casts further doubt in the veracity of the prosecution case. In the light of this cross- examination the court must refer to the documents prepared by the Investigating Officer right at the initial stage of the investigation. Reference must be made to the recovery memo exhibit PC and ruqa exhibit PD. In both these documents, it has nowhere been recorded by the investigating officer that he had made any offer to the accused, as required under the provisions of sections 50 of the Act, as stated by him before the court for the first time. Even if for the sake of arguments, it is assumed to be a case of sudden recovery, still the investigating officer was obliged to take recourse to the provisions of the special Act in relation to search and seizure from the stage he had suspicion that the accused was carrying contraband substance. Compliance to such provisions was essential particularly in view of the fact that the investigating officer must state that he suspected the accused to be in possession of the prohibited substance. 8. In the light of the above it is clear that the prosecution while conducting the search upon the accused has not adhered to the provisions of Section 50 of the Act and as such the recovery of alleged contraband from the accused cannot be made the basis of his conviction and sentence. Reference in this regard can be made to the recent judgment of Honble Supreme Court of India in the case of State of Punjab v. Baldev Singh, 1999(3) Recent Criminal Reports 533 (SC). 9. Reference in this regard can be made to the recent judgment of Honble Supreme Court of India in the case of State of Punjab v. Baldev Singh, 1999(3) Recent Criminal Reports 533 (SC). 9. Furthermore, it must also be noticed that as per the judgment of Division Bench of this Court in the case of Ram Singh v. State of Haryana, 2002(3) Recent Criminal Reports 728, the benefits accruing and applicability of the amended provisions of the Act is available to the accused whose appeals are pending before this Court or before the learned trial Court as well. Carrying of 700 grams of Charas would not be a commercial quantity as defined under the provisions of the amended Act. The same would neither be a small quantity nor a commercial quantity. There has been substantial amendment in the various provisions of the Acct. The intention of the legislature for taking somewhat liberal view in the matters controlled in the Act, is demonstratively noticeable in the entire scheme of the amended Act. The awarding of punishment is directly relatable to the quantity of the substances recovered from the accused. The prosecution is still required to prove its case beyond any reasonable doubt and the principle of strict interpretation is fully applicable to this sub-enactment. Keeping in mind, the punishment under this Act, the prosecution essentially satisfy and prove all the pre-requisites for persuading the court to hold the accused guilty of the offence under this Act. 10. For the reasons afore-stated, I am of the considered view that the prosecution has failed to prove its case beyond reasonable doubt. In addition thereto it is apparent on the face of the record that the Investigating Officer has failed to comply with the statutory requirement of section 50 of the Act. Thus, I have no hesitation in setting aside the judgment of the learned trial Court. Consequently, the appeal is allowed, the appellant- accused is acquitted of the charge framed against him. Appeal allowed.