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2004 DIGILAW 57 (PNJ)

Sawant Ram v. State of Haryana

2004-01-16

VIRENDER SINGH

body2004
JUDGMENT Virender Singh - Sawant Ram son of Bagha Ram the appellant herein stands convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred to as the Act) and has been sentenced to undergo RI for ten years to pay a fine of Rs. One lac, in default of payment of fine to further undergo RI for two years by learned Additional Sessions Judge, Sirsa vide judgment dated 17.2.1989. Aggrieved by the impugned judgment, he has preferred the present appeal. 2. In brief the case of the prosecution is that on 3.1.1988 SI/SHO Dharambir Singh PW1 alongwith other police officials were going in government Jeep to village Chautala. When they reached near village Dhaban, the appellant was seen coming from village Chautala, having a thaila in his right hand. On enquiry he disclosed his name and then investigating officer (PW1) asked him as to whether he wanted to be searched before any gazetted officer of a Magistrate but he refused and reposed his confidence in SI Dharambir Singh PW1. On search of his thaila, 2 kgs of opium wrapped in a glazed paper was recovered. 10 grams of opium was separated for sample. The sample and the residue were then sealed with the seal of DS (Dharambir Singh) and the seal after use was hand over to HC Chandgi Ram. The case property was taken into possession vide recovery memo Ex. PA. A ruqa was sent to the concerned police station upon which formal FIR Ex. PB/1 was recorded. Other necessary legal formalities were also done at the spot. 3. After completion of the investigation, the appellant was challaned. He was consequently charged under section 18 of the Act. 4. The prosecution in support of its case has examined PW1 Dharambir Singh SI, the investigating officer of this case who has reiterated the case of the prosecution. Head Constable Satbir Singh is PW2. He is also one of the witnesses to the recovery and has signed the necessary documents including recovery memo prepared at the spot. Besides this, the prosecution tendered affidavit Ex. PE of MHC Hari Singh and Ex. PF of Constable Jagdish Singh in evidence. Chemical report Ex. PD was also tendered by the prosecution. 5. He is also one of the witnesses to the recovery and has signed the necessary documents including recovery memo prepared at the spot. Besides this, the prosecution tendered affidavit Ex. PE of MHC Hari Singh and Ex. PF of Constable Jagdish Singh in evidence. Chemical report Ex. PD was also tendered by the prosecution. 5. The stand taken by the appellant is that he has been falsely implicated in this case as he had an altercation with the police official who took him to the police station and subsequently this recovery was planted upon him. However, no defence evidence has been produced by the appellant. 6. After appreciating the entire evidence, the trial Court has convicted and sentenced the appellant as indicated above. He is, thus, in this appeal. 7. I have heard Mr. D.N. Ganeriwala, learned counsel for the appellant and Mr. Bijender Dhankar, learned Assistant Advocate General, Haryana. With their assistance I have also gone through the entire record. 8. The first argument advanced by the learned counsel for the appellant is that there is non-compliance of section 50 of the Act in this case as in the ruqa Ex. PB the offer given to the petitioner before conducting his search is partial in nature. In other words it can be said as incomplete because the exact words mentioned therein were as to whether the accused want to get his search conducted before some Magistrate or any higher police official. The offer is not in clear terms as to whether search is to be conducted before a Magistrate or a gazetted officer. This, according to the learned counsel is contravention of section 50 of the Act and the appellant deserves acquittal on this ground also. In the same breath, the learned counsel submits that even otherwise the consent statement is not attested by any independent witness and as such no reliance can be placed on such consent statement. 9. The other argument advanced by the learned counsel for the appellant is that there is lacuna in the prosecution case so far as the link evidence is concerned because the affidavits of the police officials were not tendered in evidence in the presence of the accused or his counsel. 9. The other argument advanced by the learned counsel for the appellant is that there is lacuna in the prosecution case so far as the link evidence is concerned because the affidavits of the police officials were not tendered in evidence in the presence of the accused or his counsel. The deponents who had tendered their affidavits to prove the link evidence were not present for cross-examination in so much so that no question was put to the accused during his examination under section 313 Criminal Procedure Code with regard to the link evidence thereby causing substantial prejudice to the appellant and as such it cannot be safely said that the prosecution has been able to prove its case beyond reasonable doubt. The learned counsel in this regard relies upon Jai Singh v. State of Haryana, 1995(3) RCR 627. 10. The other argument advanced by the learned counsel for the appellant is that there is non-compliance of section 55 of the Act which is also fatal to the prosecution as in the present case after the recovery was effected, the case property was not produced before the Incharge of the concerned police station to take charge of and keep in safe custody the articles so recovered. In this regard my attention has been drawn to the statement of PW1 Dharambir Singh SI who is the investigating officer in this case. According to the learned counsel this lacuna also goes to the root of the case and makes the recovery doubtful. To strengthen his arguments, the learned counsel relies upon judgment of this Court rendered in Baba Budh Giri Chela v. State of Haryana, 1996(1) RCC 410. 11. The other argument advanced is with regard to non compliance of provisions of section 55 of the Act and this lacuna can vitiate the conviction. In this regard reliance has been made upon a judgment of the Apex Court rendered in Thandi Ram v. State of Haryana, 1999 AIR SCW 468. 12. Learned counsel further contends that the present case rests upon police officials only and no attempt has been made by SI Dharambir to join any independent witness inspite of the fact that recovery was effected at 3.45 PM at a place where many persons were passing by. 13. Learned counsel has also pointed out certain discrepancies in the statements of the prosecution witnesses to dislodge the prosecution case. 14. 13. Learned counsel has also pointed out certain discrepancies in the statements of the prosecution witnesses to dislodge the prosecution case. 14. Relying heavily on the aforesaid submissions, the counsel prays for acquittal of the appellant. 15. In the alternative a prayer for reduction in the quantum of sentence is made on the ground that the recovery allegedly effected from the present appellant falls under the head "non-commercial", quantity and according to the amended provisions of the Act which are also applicable to the pending appeals, sentence less than 10 years can be awarded. The learned counsel contends that the case relates to the year 1988 and the appellant by now has already faced the ordeal of protracted trial of more than 15 years. 16. Mr. Dhankar, the learned state counsel has, however, refuted the arguments advanced on behalf of the appellant and states that the recovery in this case is of 2 kgs of opium and it cannot be planted by the police when there is no reason for them to falsely implicate the appellant in this case. The conviction as recorded by the learned trial court deserves to be maintained, the State counsel so contends. 17. So far as the argument advanced with regard to non-compliance of section 50 of the Act is concerned, I do not agree with the submission made by the learned counsel for the appellant. Admittedly, in the present case the recovery from the appellant is effected from a thaila which he was having in his hand. In this situation, compliance of section 50 is not required as it does not amount to search of a person himself. In this regard reference can be made to be judgment of Honble Apex Court rendered in Kalema Tumba v. State of Maharashtra and another, 2000 Cr. L.J. 507, and a latest judgment rendered in Rajendra and anr. v. State of M.P., 2004(1) RCR(Crl.) 349. The argument, thus, is repelled. 18. However, in my considered view, the other lacunas as projected by the learned counsel for the appellant come at the rescue of the appellant and make the case of the prosecution doubtful. 19. I have very minutely seen the trial court record. On 6.2.1989, the statements of two PWs namely SI Dharambir Singh PW1 and HC Satbir Singh PW2 were recorded. 19. I have very minutely seen the trial court record. On 6.2.1989, the statements of two PWs namely SI Dharambir Singh PW1 and HC Satbir Singh PW2 were recorded. On the same date some documents were tendered in evidence and the prosecution evidence was closed by PP. Statement of the accused was also recorded on the same date and thereafter the case was posted for defence evidence and arguments. The short order (zimini order) is reproduced as under :- Present : Sh. H.R. Janni, PP for the State Accused on bail with Sh. A.N. Jain, Advocate. Statement of two PWs recorded. Some documents tendered in evidence and the prosecution evidence has been closed by the learned PP. Statement of the accused under section 313 Criminal Procedure Code recorded. Now for defence evidence and arguments to come up on 13.2.1989." 20. The statement of PP without oath was also recorded on the same date i.e. 6.2.1989. The same reads thus :- "I tender in evidence affidavit Ex. PE and Ex. PF of MHC Hari Singh and Constable Jagdish Singh and report of Chemical Examiner Ex. PD and close the prosecution evidence." 21. The order does not show that the deponents were present in the Court when the affidavits were tendered. From the above said factual position, it is very clear that two police officials who had to prove the link evidence were not kept present in the Court for cross-examination. Their affidavits alongwith Chemical Examiner report was simply tendered in evidence without affording an opportunity to the appellant to put questions to them with regard to the link evidence. The matter does not rest here. Even the link evidence was not put to the appellant during his examination under section 313 Criminal Procedure Code In this regard I have seen the statement of the accused minutely. The incriminating evidence put to the appellant is that case property was deposited with MHC and the same was sent to the Chemical Examiner who opined vide his report Ex. PD that the contents were opium. No link evidence with regard to the affidavits Ex. PE and PF tendered by the prosecution were put to the appellant under section 313 Criminal Procedure Code in order to prove the link evidence. PD that the contents were opium. No link evidence with regard to the affidavits Ex. PE and PF tendered by the prosecution were put to the appellant under section 313 Criminal Procedure Code in order to prove the link evidence. The resultant effect, in my view, is that the report of the Chemical Examiner cannot be acted upon as possibility cannot be ruled out that after the seizure and before the analysis the sample was not tempered with. The judgment rendered in Jai Singhs case (supra) cited by the learned counsel for the appellant squarely covers the case of the appellant in this regard and the appellant, thus, is entitled to the benefit of doubt. In Jai Singhs case (supra) this Court while discussing this aspect of the matter and giving the benefit to the accused, has observed in para No. 16 as under :- "16. This contention has force. In both the cases, affidavits were tendered in evidence, but in the zimini order, there is no mention that Constable Karan Singh and HC Surat Singh were present in Court for cross- examination. Even in the order-sheet of this date, there is no mention that these witnesses were present in the Court for cross-examination. Thus, no opportunity was given to the accused-appellant to cross examine these witnesses. When accused-appellant was examined under section 313 Criminal Procedure Code in question No. 2, he was asked that the sample was taken out from the seized contraband, both parcels were duly sealed with the seal of DS and in question No. 3 it was asked that the sample was sent to the Chemical Examiner and his report Ex. PD shows that the article recovered from the accused was opium/charas. Thus, it is apparent that the aforesaid link evidence is not put to the accused under section 313 of the Criminal Procedure Code." 22. In the present case, the factual position is almost the same. 23. There is non-compliance of section 55 of the Act as well. A perusal of statement of Dharambir Singh SI who is the Investigating Officer of the case indicates that a complete go-bye has been given to the provisions of section 55 of the Act. In the present case, the factual position is almost the same. 23. There is non-compliance of section 55 of the Act as well. A perusal of statement of Dharambir Singh SI who is the Investigating Officer of the case indicates that a complete go-bye has been given to the provisions of section 55 of the Act. His statement indicates that after the recovery was effected ruqa was sent to the police station for registration of the case and thereafter the case property was deposited with the MHC on the same day. The relevant portion of the statement of Dharambir Singh SI in this regard is reproduced as under :- xxx xxx xxx xxx "I sent ruqa Ex. PB to the police station for registration of the case on which formal FIR Ex. PB/1 was recorded by Daya Nand SI whose signature I identify. I prepared rough site plan Ex. PC with correct marginal notes. Ex. P1 is the same sealed parcel containing opium which was recovered from the accused. The case property was deposited with the MHC on the same day." xxx xxx xxx xxx 24. A duty has been cast on the Incharge of the police station to keep in safe custody the articles so recovered. In Baba Budh Giri Chelas case (supra) this Court while dealing with section 55 of the Act has held that merely signing some endorsement by the Incharge of the police station in this regard would not inspire confidence that there is a compliance of section 55 of the Act. In the present case, even endorsement is not there. It is the case of the prosecution that after the recovery was effected, the case property was straight away deposited with MHC of the concerned police station and was not produced before the Incharge of the police station to verify the facts and to keep it in safe custody pending orders of the Magistrate. In Thandi Rams case (supra) the appellant was acquitted only on the point of non-compliance of provisions of sections 55 and 57 of the Act observing that the conviction in such type of cases stands vitiated. In Thandi Rams case (supra) the appellant was acquitted only on the point of non-compliance of provisions of sections 55 and 57 of the Act observing that the conviction in such type of cases stands vitiated. Reference can also be made to another judgment of Honble Apex Court rendered in Gurbax Singh v. State of Haryana, 2001 SCC(Crl.) 426 in which there was non- compliance of Sections 52, 55 and 57 of the Act and finding the investigation faulty the accused was acquitted. In my view the present appellant also deserves acquittal. 25. The learned counsel for the appellant has also pointed out certain discrepancies in the statements of official witnesses besides arguing that independent witnesses have not been joined at the time of effecting recovery but I am not taking those contentions as a subject matter of discussion the prosecution case, in my view, otherwise fails as a sequel to aforesaid reasonings. 26. The net result is that the prosecution has not been able to prove the case beyond any shadow of doubt. 27. The appeal is, thus, allowed and the appellant is acquitted of the charge. He shall be discharged of the bail bonds submitted by him during the pendency of appeal. All concerned be informed of this judgment. Appeal allowed.