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2003 DIGILAW 965 (PNJ)

Hanuman v. State of Haryana

2003-07-16

K.C.GUPTA

body2003
JUDGMENT K.C. Gupta, J. (Oral) - This appeal has been filed by Hanuman-appellant against judgment dated 10.9.2003 and order dated 14.9.1993 passed by learned Additional Sessions Judge, Karnal whereby he was found guilty and convicted under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short hereinafter to be referred as "the Act") for keeping in his conscious possession 2 kgs. of opium without permit and sentenced him, vide order dated 14.9.1993 to RI for 10 years and fine of Rs. 1 lac, in default of payment, he was further sentenced to RI for 3 years. 2. Briefly stated, the facts are that PW.5-Labh Singh, ASI on 16.4.1990 was posted in Police Post Bus Stand Karnal. He alongwith ASI Ram Niwas and other police officials was present at the bus stand. PW.2-Lal Chand, Sub Inspector, Haryana Roadways, Raj Kumar, guard and Ved Parkash employees of Haryana Roadways were also present there. They were checking the buses at the bus stand. In the meantime, a bus bound for Chandigarh stopped at the bus stand. The appellant was carrying a bag in his hand and got down from the bus. He was apprehended on receipt of secret information. 3. PW.5-Labh Singh, ASI gave him an offer that since, he had a doubt that he possessed some contraband, so, he could be produced before a Gazetted Officer for his search. However, the appellant declined the offer and then the bag which he was carrying was searched and it was found to contain 2 kgs. of opium wrapped in a polythene paper. 50 grams of opium was separated as sample. The sample and the residue Ex.P1 were separately sealed with the seal of LS and were taken into possession, vide seizure memo. Ex.PB attested by the witnesses. 4. PW.5-Labh Singh ASI sent a ruqa Ex.PC to the police station for registration of a case, on the basis of which formal FIR Ex.PC/1 was registered by Madan Lal, ASI, whose signatures he identified. He prepared rough site plan Ex.PD with correct marginal notes. He recorded the statements of witnesses under Section 161 Criminal Procedure Code Thereafter, SHO/Inspector Amir Singh arrived at the spot who verified the facts of the case and put his seal AS on both the packets of the case property. The appellant was arrested and sent to the police station alongwith the case property. He recorded the statements of witnesses under Section 161 Criminal Procedure Code Thereafter, SHO/Inspector Amir Singh arrived at the spot who verified the facts of the case and put his seal AS on both the packets of the case property. The appellant was arrested and sent to the police station alongwith the case property. The case property was deposited with the MHC who received the same intact. 5. Having made out a prima facie case, the appellant was charged under Section 18 of the Act who pleaded not guilty and claimed trial. 6. After completion of the investigation, challan was put up in the Court of Chief Judicial Magistrate, Karnal who, in turn, sent the case to the Additional Sessions Judge, Karnal, vide order dated 7.4.1992. 7. In order to prove the allegations against the appellant, the prosecution examined as many as six witnesses. After the close of the prosecution evidence, statement of the appellant was recorded under Section 313 Criminal Procedure Code wherein he denied the allegations of the prosecution and pleaded false implication. However, he did not lead any evidence in defence. 8. Learned Additional Sessions Judge, Karnal, after hearing the PP for the State and the defence counsel found the appellant guilty and convicted him under Section 18 of the Act, vide judgment dated 10.9.1993 and sentenced him, vide order dated 14.9.1993, as stated in the earlier part of the judgment. 9. Aggrieved by the said judgment and order, the appellant has filed the present appeal. 10. I have heard Shri Maharaj Kumar, Advocate for the appellant, Shri Sudhir Nehra, AAG, Haryana and gone through the record of the case carefully. 11. The counsel for the appellant contended that according to the seizure memo. Ex.PB, the appellant was found carrying air bag in his left armpit and as such, it was incumbent upon the Investigating Officer to comply with the provisions of Section 50 of the Act before effecting recovery from him. He further contended that in any case the offer given by the Investigating Officer to the appellant was partial inasmuch as he was not given offer to get himself searched in the presence of Gazetted Officer or Magistrate and further he was not reminded of his statutory right that he had got a right to get himself searched in the presence of Gazetted Officer or Magistrate. For this purpose, he placed reliance upon 2 authorities of Honble Supreme Court in Abdul Rahiman v. State of Kerala, 2002(3) RCR(Criminal) 404 and Vinod v. State of Maharashtra, 2003(3) RCR(Criminal) 243. In Abdul Rahimans case (supra), it was held that where the accused was given a chance of search before Gazetted Officer or senior officer only and not before the Magistrate, then the offer is not valid as envisaged under Section 50 of the Act and as such conviction was set aside. In Vinods case (supra) it was held that even if offer of search was given before Magistrate or Gazetted Officer to the accused but that is not complete unless he was informed that he had a right in that behalf. 12. In the present case, the offer given in partial as the appellant was not given offer to get himself searched in the presence of Magistrate also and further he was not informed that he had a right in that behalf to get himself searched in the presence of Magistrate or Gazetted Officer. 13. Learned counsel for the State contended that since, the recovery had taken place from a air bag, so, the provisions of Section 50 of the Act are not applicable. In my opinion, the contention of the learned State counsel is not tenable. Opium, vide seizure memo. Ex.PB was recovered from the air bag under the left armpit of the appellant when he was apprehended by the Investigating Officer. In such circumstances, compliance of Section 50 of the Act is necessary because opium was recovered from the personal search of the appellant. 14. Learned counsel for the appellant next contended that independent witness was not joined although the recovery had been effected at the bus stand where large number of persons were present and the appellant was apprehended after receipt of secret information. In such circumstances, he contended that the testimony of the official witnesses should not be believed. 15. PW.2-Lal Chand Sub Inspector, Haryana Roadways and PW.5-Labh Singh, ASI categorically stated that many persons were present but none of them was asked to join in the investigation. Thus, the very fact that the independent witnesses were available and were not joined in the investigation casts a doubt on the prosecution story. Further, evidence of the two witnesses had to be cautiously scrutinized. Thus, the very fact that the independent witnesses were available and were not joined in the investigation casts a doubt on the prosecution story. Further, evidence of the two witnesses had to be cautiously scrutinized. There are number of discrepancies in the statements of PW.2-Lal Chand, Sub Inspector, Haryana Roadways and PW.5-Labh Singh, ASI. PW.2-Lal Chand stated that the appellant was captured and was brought to the place where they were standing. PW.5-Labh Singh contradicted him and stated that the staff of the Haryana Roadways was also with them. PW.2-Lal Chand stated that the weighing scale and the weights were taken from a rehri-wala standing outside the bus stand. PW.5-Labh Singh contradicted him and stated that weighing scale and weights were summoned from a shopkeeper nearby. PW.2-Lal Chand stated that the proceedings were done in the Khokha which is at a distance of two and half meters from the place of capture. PW.5-Labh Singh contradicted him and stated that the proceedings were done at the spot. PW.2-Lal Chand stated that he was freed from the spot at 3.15 PM after the S.H.O. had arrived there. PW.5-Labh Singh contradicted him and stated that the SHO had reached the spot at about 5.30 PM. This shows that PW.2-Lal Chand was not present when the SHO had reached there. All the discrepancies make the prosecution story doubtful. 16. Therefore, in view of the discussion above, I hold that the prosecution has not been able to bring home guilt the appellant beyond reasonable shadow of doubt. Consequently, the appeal is accepted and the appellant is acquitted of the charge by giving him benefit of doubt. Appeal allowed.