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2005 DIGILAW 1187 (PNJ)

Ram Saran v. State Of Haryana

2005-11-16

UMA NATH SINGH

body2005
Judgment Uma Nath Singh, J. 1. This Criminal Appeal arises out of a judgment passed by learned Additional Sessions Judge, Kurukshetra, dated 1.4.1989, in Sessions Case No. 7/2 of 1989 (Sessions trial No. 6 of 1989), holding the accused- appellant guilty of an offence under Section 18 of the NDPS Act and sentencing him to undergo R.I. for 10 years with a fine of Rs. 1 lac. 2. From the facts narrated at the bar, it appears that a police party was on patrolling duty on 15.6.1988 and at 4 p.m., they spotted the accused-appellant coming from Katihal side on a road known as Kaithal-Cheeka road. The accused-appellant was searched on suspicion and he was found to be carrying 2 kgs and 200 grams of opium. Learned trial Court appears to have recorded conviction on the basis of testimonies of ASI Dalip Singh (PW-1), ASI Manke Ram (PW-2) of CIA Staff, and ASI/SHO Anil Kumar (PW-3) of Police Station Kaithal, apart from considering the chemical examination report and recovery memos. 3. Learned counsel for the appellant submitted that : Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act), as it was understood at the time of commission of offence in the year 1988, was a mandatory provision. It needed to be applied properly in all such cases. The accused-appellant was given a partial offer as to whether he wanted to be searched before a Gazetted Officer (and not before a Magistrate). The police did not record the consent of the accused-appellant to the effect that he reposed faith in the police party on patrol duty to conduct the search. 4. On the other hand, learned State counsel tried to justify the impugned judgment. He submitted that the procedures as required under the law were duly complied with. 5. On due consideration of rival submissions, it appears that the relevant provisions of the Act have not been properly adhered to. In the evidence of ASI Dalip Singh (PW-1), it is stated that the accused was only told as to whether he wanted his search to be taken before a Gazetted Officer, which he declined. He has given the details of the conduct of the accused, which caused suspicion in the mind of the police party. In the evidence of ASI Dalip Singh (PW-1), it is stated that the accused was only told as to whether he wanted his search to be taken before a Gazetted Officer, which he declined. He has given the details of the conduct of the accused, which caused suspicion in the mind of the police party. Moreover, he has also mentioned that the nearest habitation from the place of search was only 3-4 kms away. He has admitted that he did not know as to whether the police official who conducted the search, had also called any independent witness, before starting the search. He has admitted that no separate statement of the accused giving consent in favour of the police party to conduct the search was recorded into writing. It only finds place in the FIR. He has admitted that a few persons had passed through the road in vehicles. Besides, he has also admitted that the accused was made to sit on a scooter of Constable Rambir and he was hand-cuffed. Strangely enough, the nearest habitation was only 3-4 kilometers, but the police did not make any effort to associate an independent public witness. It is equally relevant to note that the police did not care to take a written consent of the accused before the search. They have given a complete go-bye to the provisions of Section 50 of the Act. 6. ASI Manke Ram (PW-2) conducted the search and seizure. He has admitted that only a partial offer was given to the accused-appellant. He has also mentioned that after sealing the sample, he had handed over his seal to ASI Dalip Singh (PW-1). However, he has acted in dual capacity (the Investigating Officer and the complainant both). He had sent ruqa (exhibit PB) to the Police Station, on the basis of which the FIR (exhibit PB/1) was recorded. He produced the accused-appellant and the case property before the Station House Officer ASI Anil Kumar (PW-3), who also affixed his seal on the parcels. He did not inform the Gazetted Officer on the wireless set who was available at a short distance in Kaithal itself. He produced the accused-appellant and the case property before the Station House Officer ASI Anil Kumar (PW-3), who also affixed his seal on the parcels. He did not inform the Gazetted Officer on the wireless set who was available at a short distance in Kaithal itself. Moharrir Head Constable Issar Singh who was entrusted with the case property has not been produced in the witness box to depose as to whether the seal affixed on the sample was intact while being deposited in Malkhana and also when it was handed over to a Constable for depositing in the Forensic Science Laboratory. He has admitted that a few persons had passed through the bridge where the search was conducted. But no one was willing to be associated with the proceedings. He has stated that a partial offer to be searched in presence of a Gazetted Officer on being given to the accused was declined. The process of search and seizure took almost 1-1/2 hours and according to this witness, he reached the Police Station at 6.30 p.m. The distance between the Police Station and the place of search was not that long that an independent witness could not have been associated. If no independent witness volunteered to be associated, at least a Gazetted Officer or a Magistrate could have been associated with the proceedings. 7. ASI Anil Kumar (PW-3) has been examined on limited points. He admitted that he put his seal on the sample and the residue of the contraband. But he has not stated that he physically verified articles and then put his seal. That apart, all the three official witnesses, whose testimonies appear to be totally unsatisfactory, no other witness has been examined by the prosecution. Even the examination of the appellant under Section 313 Cr.P.C is too short to inspire confidence of the Court. Some vital incriminating circumstances have not been put across to him by the Court and, thus, the appellant has suffered a serious prejudice. He was not told about the prejudice being caused to him on account of a partial offer. He was also not told to give an answer as to whether he suffered any prejudice in the absence of an independent witness and on account of non-production of Moharrir Head Constable of the Police Station and other Police Personnel. He was not told about the prejudice being caused to him on account of a partial offer. He was also not told to give an answer as to whether he suffered any prejudice in the absence of an independent witness and on account of non-production of Moharrir Head Constable of the Police Station and other Police Personnel. As regards application of mandatory provisions of Section 50 of the Act, after the judgments of Honble Supreme Court reported in State of Haryana v. Jarnail Singh and others, 2004(2) RCR(Crl.) 960 (SC) : 2004(3) Apex Criminal 163 (SC) : 2004(5) SCC 2188; State of Himachal Pradesh v. Pawan Kumar, 2005(2) RCR(Crl.) 622 (SC) : 2005(2) Apex Criminal 1 (SC) : 2005(4) SCC 350 and State of Rajasthan v. Ramesh Chandra, AIR 2005 Supreme Court Weekly 2133, the position has changed as Honble the Apex Court has clarified that search of a person does not include search of baggage and articles which can be separated easily from the body, however, to lend credibility to the prosecution case and to ensure transparency and fairness during search and seizure, at least an independent witness should have been associated with the investigation. Hence, it is not clear that the appellant was produced before the Illaqa Magistrate with the case property. Once the accused-appellant had been detained on the spot on suspicion and the distance between the Police Station and the spot was not long, he could have been immediately produced before the nearest Magistrate, as in Kaithal (now a district headquarters), there were the Courts of judicial officers, apart from the offices of Gazetted Police Officer and Executive Officers. Further, there was an inordinate delay in sending the sample to the Forensic Science Laboratory. The search was conducted on 15.6.1988 but the sample was delivered only 22.6.1988. The chemical examination report placed on record also lacks the necessary details. The Police Constable, who carried the sample, was not produced in the witness box to explain the circumstances causing delay nor is such explanation available in evidence of any of the prosecution witnesses. 8. Under the circumstances, the impugned judgment of learned Additional Sessions Judge, Kurukshetra, dated 1.4.1989 in Sessions Case No. 7/2 of 1989 (Sessions trial No. 6 of 1989), does not deserve to be affirmed. Hence it is hereby set aside and the Crl. Appeal No. 192-SB of 1989 is allowed. 8. Under the circumstances, the impugned judgment of learned Additional Sessions Judge, Kurukshetra, dated 1.4.1989 in Sessions Case No. 7/2 of 1989 (Sessions trial No. 6 of 1989), does not deserve to be affirmed. Hence it is hereby set aside and the Crl. Appeal No. 192-SB of 1989 is allowed. The bail bonds of accused-appellant, who was enlarged on bail by this Court, shall stand discharged accordingly.