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2005 DIGILAW 1194 (PNJ)

Maan Singh v. State Of Haryana

2005-11-18

UMA NATH SINGH

body2005
Judgment Uma Nath Singh, J. 1. This Criminal Appeal arises out of a judgment dated 5.9.1998 passed by the learned Additional Sessions Judge, Hisar, in Sessions Trial No. 240 of 11.3.1996 (31.3.1998); holding the accused-appellant guilty of offence under Section of 18 of the NDPS Act, and sentencing him to undergo RI for ten years with a fine of Rs. 1,00,000/-; and in default of payment of fine, directing to undergo further two years RI. 2. Briefly narrated the facts of the prosecution case are as follows : on 2.10.1995, SI/SHO Raja Ram along with other police personal, was present at bridge Rajbaha on a road to village Nadhori in its precincts; at that time, a person was seen coming with a suit case, who on seeing the police party at once sat on ground pretending to go for urination; therefore, apprehended on the spot; and he disclosed his name as Maan Singh son of Amin Lal. The I.O. expressed his doubts that the accused was carrying some contraband in the suit case; a notice was served upon him informing as to whether he wanted to be searched before a Gazetted Officer or a Magistrate, and he agreed for a Gazetted Officer. During search of the suit case in the presence of a DSP, the police recovered 12 kgs opium, out of which, 100 grams were separated as sample, and the remainder was found to be 11 kgs. 900 grams. The sample and the residue were sealed with seals of `IS and `RR, and were taken into possession vide a recovery memo. The accused was formally arrested; a rough site plan was prepared, and after statements of PWs were recorded, and investigation completed, a challan was laid before competent Court for trial. 3. Heard learned counsel for the parties and perused the record. Learned counsel for the appellant urged that the accused was not informed of his right to be searched, notwithstanding the fact that he was given a notice in terms of Section 50 of the Act asking for his opinion to be searched before a Gazetted Officer or a Magistrate. Learned counsel referred to and relied upon a judgment of Honble the Apex Court reported in 2000 Crl. Law Journal 3181 (SC) : 2000(1) RCC 529 (C. Ali v. State of Kerala), to substantiate his aforesaid submissions. Learned counsel referred to and relied upon a judgment of Honble the Apex Court reported in 2000 Crl. Law Journal 3181 (SC) : 2000(1) RCC 529 (C. Ali v. State of Kerala), to substantiate his aforesaid submissions. According to him, the right to be informed before conduction of actual search is a mandatory requirement under Section 50 of the Act. Learned counsel further contended that after sealing of the residue and the sample, the seal was handed-over to a police official and not to an independent/public witness, nor did the prosecution make effort to seek assistance of a public witness. Learned counsel has placed reliance upon judgment of this Court reported in 2004(1) RCR(Criminal) 623 (Tara Singh v. State of Punjab) wherein also, in an identical situation, when the case property was sealed by the Investigating Officer and his seal was handed-over to a Head Constable (and not to an independent witness), this Court held that, under such circumstances, tampering with the case property cannot be ruled out, and therefore, set side the conviction and sentence. Learned counsel also urged that the accused-appellant was not having a conscious possession of the contraband item, which was found in a suit-case. Learned counsel argued the there is a serious contradiction in the evidence of PW-1 and PW-2 with regard to actual quantity of sample - as to whether it was 10 gms. or 100 gms. To strengthen his point, learned counsel cited a judgment of this Court reported in 2002(3) RCR(Criminal) 738 (State of Haryana v. Ramesh Kumar) wherein, the Court upheld the acquittal recorded by learned Trial Court on the ground that the sample was retained by Investigating Officer himself, and its weight was found to be 44 gms. as against prosecution version of 50 gms. by Forensic Science Laboratory. Learned counsel also submitted that in the instant case, the seal of the Investigating Officer was given to an ASI and the DSP being a Gazetted Officer, even retained his own. Learned counsel further submitted that only the first copy of the recovery memo was signed by the DSP, and he signed the carbon copy later on in pen ink. Thus, according to learned counsel, the incident had not happened in the manner, as set out by the prosecution. Learned counsel further submitted that only the first copy of the recovery memo was signed by the DSP, and he signed the carbon copy later on in pen ink. Thus, according to learned counsel, the incident had not happened in the manner, as set out by the prosecution. Learned counsel also urged that there is a vital contradiction in the prosecution evidence as to who prepared the recovery memo, and sent a ruqa to the concerned Police Station - the Investigating Office or a Constable - and it appears that this exercise was done by a Constable assisting the Investigating Officer. Learned counsel further submitted that the ASI, who had accompanied the DSP, was given up by the prosecution, and he appeared as a defence witness. Thus, according to learned counsel, the prosecution evidence is infirm and also full of glaring contradictions, hence, it is unworthy of credence. He contended that an FSL form was not filled up on the spot, and the SHO of the Police Station did not affix his seal on the sample and the contraband item on being produced before him. Learned counsel further contended that this is case of chance recovery, and, therefore, the provisions of Section 50 of the Act, being mandatory in nature, should have been complied with in toto. 4. On the other hand, learned State counsel contended that this is a case of recovery from a suit-case, and not from the person of the accused/appellant, therefore, the ratio of the judgment of Honble the Apex Court reported in 2004(2) RCR(Crl.) 960 (SC) : 2004(3) Apex Criminal 163 (SC) : 2004(5) SCC 188 (State of Haryana v. Jarnail Singh and ors.), would apply. He also submitted that this is a case of chance recovery, and no such questions - as to whether the sample and seal were tampered with were put to the prosecution witnesses. Learned counsel referred to a five-Judge decision of Honble the Apex Court reported in 1999(3) RCR(Crl.) 533 (SC) : (1999)6 SCC 12 (State of Punjab v. Baldev Singh). 5. The prosecution case is founded upon the testimonies of Inder Singh DSP (PW3), Raja Ram SI/SHO (PW5), Pratap Singh, ASI (PW4) and Head Constable Suraj Bhan (PW2). Learned counsel referred to a five-Judge decision of Honble the Apex Court reported in 1999(3) RCR(Crl.) 533 (SC) : (1999)6 SCC 12 (State of Punjab v. Baldev Singh). 5. The prosecution case is founded upon the testimonies of Inder Singh DSP (PW3), Raja Ram SI/SHO (PW5), Pratap Singh, ASI (PW4) and Head Constable Suraj Bhan (PW2). Inder Singh (PW3) has stated that, on 2.10.1995, he was posted as a DSP; he received a message from SHO Raja Ram (PW5) on V.T. Set; the search was conducted in his presence; out of 12 Kgs of seized contraband, 100 grams were separated as sample (and the residue was 11 Kgs. and 900 grams), and the sample and the residue were sealed in separate parcels. However, he has admitted to have retained his seal, whereas the seal of SI/SHO Raja Ram (PW5) was handed over to ASI Pratap Singh (PW.4). PW.4 and PW.5 have corroborated him on this point. Thus, it becomes abundantly clear that the seal of the Gazetted Officer/DSP was lying only with him, and the seal of the IO/SHO was handed over to another subordinate Police Officer, ASI Pratap Singh (PW.4), and not to an independent public witness. The DSP (PW.3) has stated that he signed and attested the recovery memo (Ext.PC) but he did not sign its carbon copy which was signed later on in pen ink, and there is a contradictory explanation for that in the testimonies of the prosecution witnesses. He further stated that the special report (Ext.DP) was received by him vide the receipt Ext. PD/1 but again Ex-DC, its carbon copy, does not bear his signature. In the examination-in-chief, this witness has stated that a notice was served on the accused by the SI before search but in his cross-examination he has mentioned as : "no notice was served upon the accused in my presence". According to this witness, a V.T. message was received at 5 a.m.; he reached the spot at 6 a.m., and remained there up to 8 a.m. Thus, his stay on the spot was for 2 hours. He also stated in cross-examination that the recovery Memo (Ex.PC) and the Ruqa (Ext. PF) (sent to Police Station for registration of FIR) were written only by the I.O. This fact is also contradicted by the oral evidences of equally important other prosecution witnesses. He also stated in cross-examination that the recovery Memo (Ex.PC) and the Ruqa (Ext. PF) (sent to Police Station for registration of FIR) were written only by the I.O. This fact is also contradicted by the oral evidences of equally important other prosecution witnesses. Another prosecution witness, Raja Ram SI/SHO (PW5) has stated that about five-ten public men had passed through the road but they had refused to join the search and seizure proceedings. However, he has also stated that he did not mention this fact in the Zimni. This fact does not find a mention in the evidence of the DSP (PW.3), who stayed the spot for 2 hours. It appears that no further efforts, were made to join a public witness although the search was conducted after sun-rise at 7.30 a.m. on a main road, just at a distance of 7 Kms. from the Police Station. This witness has stated that all the relevant documents were prepared with carbon by him on the spot and they also carried their carbon copies, whereas the DSP (PW.3) has stated in the cross-examination that the documents were not placed with carbon copies before him for signature. The third witness, ASI Pratap Singh (PW.4), has stated that all the witnesses concerned signed the carbon copies only on the spot. A further contradiction is also noticed in their statements inasmuch as the DSP (PW3) has stated that the recovery memo (Ext.PC) and Ruqa (Ext.PF) were scribed by PW.5 whereas in his cross-examination, the latter (PW-5) has stated that those documents were scribed by some other Police Officers but he could not tell their names and ranks. This contradiction also needs to be examined in the context of the testimony of Kanwar Singh ASI (DW1), who was then posted at the same Police Station but has appeared as defence witness. In his examination-in-chief, he has stated : "Ruqa Ex. PF is in my handwriting........... Recovery memo Ex.PC is in my handwriting and signed by Raja Ram I.O and ASI Pratap Singh and HC Mahendra Singh.........." There is nothing in his cross-examination to impeach these statements. In this cross-examination, this witness has deposed as : "I had accompanied the DSP to the place of recovery on the direction of the DSP. It is incorrect to suggest that I did not visit the spot. In this cross-examination, this witness has deposed as : "I had accompanied the DSP to the place of recovery on the direction of the DSP. It is incorrect to suggest that I did not visit the spot. It is incorrect to suggest that the documents were not prepared by me at the spot. It is incorrect to suggest that I am deposing falsely at the instance of the accused...... ." That apart, PW.5 in his cross-examination has categorically stated : ".......... .Kanwar Singh is also working with me since last many years. I cannot recollect. Ex. PF and PC are in the handwriting of Kanwar Singh ASI........ ." Further, from the evidence of ASI Pratap Singh (PW.4), who was handed over the seal of the I.O. (PW-5), it appears that the aforesaid documents were scribed by a Police Constable. Thus, such serious contradictions appearing in the testimonies of two key witnesses as regards the authorship of two vital documents, namely : Ext.PF and Ext.PC, cause a serious jolt to the very foundation of the prosecution case and would demolish its entire edifice. If Ex.PF and Ext. PC are to be disbelieved then the FIR (Ex. PF/1) and the special report (Ex.PD) would not endure. Moreover, it is relevant to mention that the evidence of the I.O. (PW.5) also appears to be wavering on the identity of the suit case (Ex.P/1) which contained the contraband. It is also noticed that Banarsi Dass (PW.1) though in his deposition before the Court has stated that the weight of the sample handed over to him on 4.10.95 for depositing in FSL was 100 grams but in his statement under Section 161 Cr.P.C., it is stated to be 10 grams. Similarly, Head Constable Suraj Bhan (PW-2) in his statement under Section 161 Cr.P.C. (Ext.DB) has stated the weight of sample to be 10 grams whereas in his cross-examination, he has mentioned it to be 100 grams. Further, in the report of FSL, it is mentioned to be 97 grams at the time of receipt and 90 grams at the time of return. Besides, the sample was handed over to him on 4.10.1995 but deposited with F.S.L. the next day on 5.10.1995. Further, in the report of FSL, it is mentioned to be 97 grams at the time of receipt and 90 grams at the time of return. Besides, the sample was handed over to him on 4.10.1995 but deposited with F.S.L. the next day on 5.10.1995. As per the FIR (Ex.PF/1), the DSP is stated to have reached the spot with his personal staff although none of the staff has been examined to corroborate the timing of arrival and the presence of the DSP on the spot. This would have been a very relevant fact of counter the testimony of ASI Kanwar Singh, who has asserted to have accompanied the DSP to the spot and also in view of the contradictions in the evidences of PW-3, PW-4 and PW-5 as discussed above. Such contradictions create doubt about the credibility of persecution case, and particularly, when the accused-appellant has stated in his statement under Section 313 Cr.P.C. that he had altercations with a Head Constable on a Bus Stand wherefrom he was brought to the Police Station and falsely implicated. The accused-appellant has also stated that all the documents were prepared in the Police Station itself. Yet further infirmities are also evident in the search and seizure proceedings namely : the I.O. is the complainant; no independent witness was joined (although the search was conducted after sunrise on a main road); and the I.O., who is also the complainant, even did not deposit the sample, the sample of seal, and the case property before some other police officer, like SHO/SI/ASI of the Police Station. Further, as per his statement, he directly deposited them with MHC Suraj Bhan (PW-2). Thus, an important safeguard which ought to be resorted for protection of rights of the accused was also not followed, resultantly, the additional/officiating SHO, if any, could not affix his seal on the case property/seized articles after physical verification. As regards the application of Section 50 of the Act, in the case of State of H.P. v. Pawan Kumar, 2005(2) RCR(Crl.) 622 (SC) : 2005(2) Apex Criminal 1 (SC) : (2005)4 SCC 350), a three - Judge Bench of Honble the Apex Court has held that the word "person" would mean a human being with appropriate coverings, clothing and footwear, and the articles (bag, briefcase, etc.) cannot be treated as body of a human being. Honble the Apex Court has also held that one of the tests, which can be applied in such case is : where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search it will be search of a person. Thus, now, the settled position appears to be that the provisions of Section 50 of the Act would apply only in cases of search of person. However, in the instant case where the accused-appellant was suspected of carrying some contraband in his bag, it may be obligatory on the part of an empowered officer conducting search to inform the accused that he has the right to require his search being conducted in presence of Gazetted Officer or a Magistrate. Moreover, in a case of search on suspicion, it may be difficult to ascertain before conduction of actual search as to whether the accused is in possession of some contraband on his person or in his clothing and coverings or in a bag like article being carried by him. Further in cases of search on suspicion, it may also be difficult to hold that the police would only confine to search of bag or article being carried by the accused and the area and scope of search on suspicion may vary depending on the nature and quantity of contraband being carried. This view appears to be nearer to the ratio of a latest judgment of Honble the Apex Court. See : State of Rajasthan v. Ramesh Chandra, 2005(2) Apex Criminal 248 : (AIR 2005 Supreme Court Weekly 2133 at page 2137-para 24). 6 Resultantly, Crl. Appeal No. 915-SB of 1998 is hereby allowed and the impugned judgment passed by the learned Additional Sessions Judge, Hisar, in Sessions Case No. 53 of 11.3.1996/4.7.1997 (ST No. 240 of 11.3.96) is hereby set aside. The accused-appellant, who is said to be lodged in jail for the past more than five years, is directed to be released forthwith, if not wanted in any other case.