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2005 DIGILAW 540 (PNJ)

Daya Nand v. State Of Haryana

2005-04-27

VIRENDER SINGH

body2005
Judgment Virender Singh, J. 1. Appellant Daya Nand stands convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act) vide impugned judgment of learned Additional Sessions Judge, Jhajjar dated 7/8.12.1998 and has been sentenced to undergo R.I. for a period of ten years and to pay a fine of Rs. one lac, in default thereof to further undergo R.I. for one year. Aggrieved by the impugned judgment of conviction and sentence, he has preferred the present appeal. 2. In brief the case of the prosecution is that on 4.8.1997, the appellant was found in conscious possession of 4.800 (kilograms ?) grams of charas when his search was conducted by Mahabir Singh Inspector/SHO, Police Station Sadar Bahadurgarh in the presence of other police officials and one A.E.T.O. Mr. Bhagat Singh Sindu. 100 grams of charas was separated as sample and put it into a parcel by using the seals of `MS and `BS. The remainder contraband was also sealed in another parcel. Both the parcels were taken into possession vide recovery memo. Ruqa was sent to the Police Station for the registration of the formal FIR. Other statutory formalities were completed at the spot by Mahabir Singh Inspector. The appellant, the case property and the witnesses were then produced before the DSP who after verifying the facts deposited the case property with MHC. The same was then sent to FSL, Madhuban for examination and after the report of the FSL, the appellant was challaned. He was charged under Section 20 of the Act. As stated above, he has now suffered the conviction. 3. The case of the prosecution mainly hinges upon the statement of Inspector Rajendra Singh PW-1, Bhagat Singh Sindu A.E.T.O. PW-2, Inspector Mahabir Singh PW-3, Smt. Kala Rama Chandran A.I.G., PW-4, Head Constable Har Narain PW-5, Constable Surender Kumar PW-6 and Head Constable Dharam Singh PW-7. I shall be discussing the material evidence at the proper stage. 4. The stand taken by the appellant as emerges from his statement recorded under Section 313 Cr.P.C. is that he has been falsely implicated in this case for the reason that he and his family had openly helped Raj Singh who was against Amar Singh and Amar Singh was instrumental in getting this case registered against the appellant. 4. The stand taken by the appellant as emerges from his statement recorded under Section 313 Cr.P.C. is that he has been falsely implicated in this case for the reason that he and his family had openly helped Raj Singh who was against Amar Singh and Amar Singh was instrumental in getting this case registered against the appellant. It is then alleged that the said Amar Singh was also instrumental in getting his brother Mehtab murdered through Dharambir, a relation of Amar Singh. One Raj Singh Sarpanch was produced in defence as DW-1. 5. I have heard Mr. Sandeep Kotla, learned counsel for the appellant and Mr. Jatinder Dhanda, Advocate for the State of Haryana. With their assistance, I have also gone through the entire record minutely. 6. Mr. Kotla attacks the prosecution case primarily on the point of non- compliance of Section 50 of the Act contending that offer in this case is incomplete as the notice Ex. PA indicates that after the appellant was suspected of carrying contraband, he was asked to be searched before Inspector Mahabir Singh or the Gazetted Officer. He was never apprised of his statutory right of being searched before any Magistrate. The learned counsel in this regard has drawn my attention to Ex. PA. While dwelling upon his arguments the learned counsel further contends that even in the substantive statement of Inspector Mahabir Singh PW-3, it is clear that the offer is incomplete and the appellant therefore opted to be searched in the presence of a Gazetted Officer. The relevant portion of the statement has also been read over before me. The learned counsel has also taken me through the statement of Bhagat Singh Sindu PW-2 and HC Har Narain PW-5 who are the other witnesses to the recovery and points out that even in their statements also, the offer was not complete as required. 7. In support of his contentions, the learned counsel has relied upon a latest judgment of Full Bench of this Court rendered in Mohan Singh v. State of Punjab, 2004(4) RCR(Crl.) 260. 8. The other argument advanced by Mr. Kotla is that there is considerable delay in sending the sample to the FSL for examination and there is no explanation for the same. He contends that as per the prosecution case the recovery was effected on 4.8.97 whereas the sample was sent to the FSL on 10.9.97. 8. The other argument advanced by Mr. Kotla is that there is considerable delay in sending the sample to the FSL for examination and there is no explanation for the same. He contends that as per the prosecution case the recovery was effected on 4.8.97 whereas the sample was sent to the FSL on 10.9.97. There is, thus, delay of more than one month in sending the sample which creates doubt and the possibility of tampering with the sample cannot be ruled out. My attention has been drawn to the two affidavits Ex. PF and PG tendered by Constable Surender Singh and HC Dharam Singh respectively. 9. The learned counsel then contends that even the affidavit filed by HC Dharam Singh (Ex. PG) does not talk about the fact that the case property was deposited with him on 4.8.97. While drawing my attention to para No. 1 of the said affidavit where it is mentioned that on 27.8.97, Dharam Singh was deputed as MHC in Police Station Sadar Bahadurgarh. From this infirmity, the learned counsel wants to develop that there is no evidence brought on file by the prosecution to show as to who had kept the case property in his safe custody from 4.8.97 upto 27.8.97. This weakness according to the learned counsel is enough to cast doubt on the prosecution story. 10. The learned counsel then contends that there is non-compliance of Section 55 of the Act as the case property was not deposited with the SHO of the concerned Police Station. This weakness also dents the case of the prosecution. 11. The learned counsel then submits that the Investigating Officer has not joined any independnet witness despite the fact that there was no dearth of the same at the place of alleged recovery. This informity also weakens the case of the prosecution. 12. On the basis of the aforesaid submissions, the learned counsel prays for acquittal of the appellant. 13. Controverting the submissions made on behalf of the appellant, Mr. Dhanda appearing for the State of Haryana submits that there is no reason to disbelieve the prosecution witnesses as their evidence is consistent on all material aspects. 12. On the basis of the aforesaid submissions, the learned counsel prays for acquittal of the appellant. 13. Controverting the submissions made on behalf of the appellant, Mr. Dhanda appearing for the State of Haryana submits that there is no reason to disbelieve the prosecution witnesses as their evidence is consistent on all material aspects. He then contends that even otherwise the appellant himself has offered his search to be conducted before a gazetted officer Bhagat Singh Sindu was already with the police party and he was the Gazetted Officer and the search was conducted in his presence. The appellant cannot now derive any advantage even if there is some irregularity in the notice given to him. The learned counsel then contends that even if there is any delay in sending the sample to the FSL, the same cannot be considered as fatal to the prosecution for the reason that when the sample reached the hands of the concerned official of FSL, the seals were intact. The recovery effected from the appellant is very heavy and as such he has no escape, the learned State counsel so contends. 14. After hearing the rival contentions of either side, I am of the view that the case of the prosecution fails on the following grounds :- 15. In this case, the non-compliance of statutory provisions of Section 50 of the Act are writ large. As per the prosecution case, the appellant was carrying a plastic bag in his hand. On suspicion he was apprehended. Thereafter, he was given a notice under Section 50 of the Act. I have gone through the said notice which is in vernacular (Hindi language). When translated into English it reads as under :- "You are hereby given notice that I have a suspicion to the effect that you are keeping some contraband with you. You intend to give your search to me or before some gazetted officer." 16. The aforesaid notice is signed by Inspector Mahabir Singh, the appellant himself and the other two witnesses to the recovery i.e. Bhagat Singh Sindu and HC Har Narain Singh. The reply to the notice indicates that the appellant had shown his desire to be searched before some gazetted officer. The said reply is also signed in the aforesaid manner. 17. The aforesaid notice is signed by Inspector Mahabir Singh, the appellant himself and the other two witnesses to the recovery i.e. Bhagat Singh Sindu and HC Har Narain Singh. The reply to the notice indicates that the appellant had shown his desire to be searched before some gazetted officer. The said reply is also signed in the aforesaid manner. 17. From the aforesaid notice, it is now very clear that there is no offer given to the appellant of being searched before a Magistrate. For verifying myself on this aspect, I have very minutely seen the statements Bhagat Singh Sindu PW-2, Inspector Mahabir Singh PW-3 and HC Har Narain Singh PW-5, the witnesses to the recovery. The relevant statement of Bhagat Singh PW-2 reads thus :- xxx xxx xxx xxx "The SHO told the accused that his search was to be taken so he gave notice Ex. PA which was attested by me. The accused opted for being searched before a Gazetted Officer. Statement of the accused in this respect is Ex. PB was recorded which was signed by me and Daya Nand accused. It was also attested by Har Narain HC. In my presence and on my instruction the SHO took personal search of the accused." xxx xxx xxx xxx 18. Statement of Inspector Mahabir Singh PW-3 reads as under :- xxx xxx xxx xxx "Feeling suspicious we apprehended the accused. I asked the accused whether he wanted to be searched before a gazetted officer or was agreed to be searched by me. The accused opted to be searched in the presence of Gazetted Officer. The notice given by me to the accused is Ex. PA and his statement in reply is Ex. PB, which was signed by the witnesses and the accused. Thereafter in the presence of AETO and on his instruction I took personal search of the accused and recovered charas from the polythene bag which he was carrying." Statement of HC Har Narain PW-5 reads as under :- xxx xxx xxx xxx "Inspector Mahabir Singh arrested him on suspicion with our help. He served a notice under Section 50 NDPS Act on the accused. The accused agreed to be searched by some Gazetted Officer." xxx xxx xxx xxx 19. From the aforesaid substantive evidence, it is crystal clear that all the witnesses talk of a notice Ex. PA given under Section 50 of the Act. He served a notice under Section 50 NDPS Act on the accused. The accused agreed to be searched by some Gazetted Officer." xxx xxx xxx xxx 19. From the aforesaid substantive evidence, it is crystal clear that all the witnesses talk of a notice Ex. PA given under Section 50 of the Act. Inspector Mahabir Singh is, however, very clear in the substantive statement that he asked the appellant as to whether he wanted to be searched by him or a Gazetted Officer. He, however, gave no offer with regard to the search being conducted in the presence of a Magistrate. 20. In Mohan Singhs case (supra), the question of law posed was with regard to the provisions of Section 50 of the Act. In the said case, the accused was carrying a gunny bag containing 13 kgs of opium on his head at the relevant point of time. The argument advanced was that there is apparent violation of provisions of Section 50 of the Act as the appellant was carrying the bag on his person and this being a personal search, strict compliance to the provisions of Section 50 of the Act including giving complete offer in terms thereof was mandatory. The infirmity highlighted was that the offer was not complete and composite as contemplated under Section 50 of the Act and as such the appellant deserves acquittal. However, other infirmities were also projected. May be the Full Bench on merits did not find any infirmity in the aforesaid case with regard to non-compliance of Section 50 of the Act and acquitted the accused on other weaknesses in the prosecution case but the Honble Full Bench while relying upon many judgments of the Apex Court including the judgment of Constitutional Bench rendered in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 (SC) : 1999 SCC (Crl.) 1080 and another judgment of three Judges Bench, rendered in Namdi Francis Nwazor v. Union of India, 1998 SCC (Crl.) 1516, has ultimately observed as under:- "The result of the above discussion is that it is obligatory upon the investigating officer to give complete offer to the suspect upon whom he proposes to conduct personal search and where the suspect exercises conduct the search in presence of the Gazetted Officer or the Magistrate, as the case may be. The offer must be complete, but essentially need not be in writing." 21. The offer must be complete, but essentially need not be in writing." 21. In Baldev Singhs case (supra) the Honble Supreme Court while considering the matter at great length with regard to Section 50 of the Act held that it was obligatory upon the investigating officer to inform the suspect of his right to be searched before a gazetted officer or a Magistrate. It is then said that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty upon the investigating officer to ensure compliance to the provisions of Section 50. Failure to conduct his search before a Gazetted Officer or a Magistrate would cause prejudice to the accused, render the recovery of illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded on the basis of possession of the illicit article. It was, however, held in the aforesaid judgment that such offer may not necessarily be in writing. 22. In Namdi Franciss case (supra), the three Judges Bench has held that on a plain reading of sub-section (1) of Section 50 of the Act, it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. It was also clarified by the Honble Apex Court that if the person is carrying a hand bag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. In para 3 of the aforesaid judgment, their Lordships have observed as under :- "We must hasten to clarify that if that person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person." 23. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found, and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person." 23. Adverting to the facts of the case, it can now very safely be said that the provisions of Section 50 of the Act are attracted in this case as recovery of the contraband is allegedly effected from a plastic bag being carried by the appellant in his hand. As stated above, the offer is incomplete on the face of it as is clear from the notice Ex. PA. Even in the substantive statement, no attempt has been made by the prosecution to show that the appellant was given a complete offer as contemplated under the statute. The partial offer cannot in any term be considered as a complete offer. Section 50 has laid down in quite candid terms that the person to be searched should be told by the officer who is to search him that he has the right to be taken to a Gazetted Officer or a Magistrate for search. It will be then for the officer who is to conduct his search whether to take him to a Gazetted Officer or a Magistrate depending upon his availability with case. When the Legislature intends a particular thing to be done in that manner, that thing has to be done in that manner and in no other manner whatever. We cannot question the wisdom of Legislature at all. There should be no impingement so far as this offer is concerned. The resultant effect of non-compliance is that a prejudice is caused to the appellant and he deserves the benefit of acquittal on this count. 24. I also find the case of the prosecution on slippery footing with regard to considerable delay in sending the sample. There should be no impingement so far as this offer is concerned. The resultant effect of non-compliance is that a prejudice is caused to the appellant and he deserves the benefit of acquittal on this count. 24. I also find the case of the prosecution on slippery footing with regard to considerable delay in sending the sample. No doubt when the sample reached the office of FSL on 10.9.97, the seals were found intact as those were tallied with the specimen seals sent with the forwarding letter but the fact remains that the prosecution has not produced the cogent evidence to show that the samples were kept in safe custody right from 4.8.97 upto 10.9.97 when those were taken out of the Malkhana for further transmission to the Laboratory. The evidence adduced in this regard is in the shape of two affidavits tendered by Constable Surender Kumar Ex. PF and HC Dharam Singh Ex. PG. HC Dharam Singh was deputed as MHC in Police Station Sadar Bahadurgarh. His affidavit indicates that on 10.9.97, he had handed over the samples of the contraband having seal impression of `BS and `MS alongwith sample seal to one Constable Surender Singh No. 99 for taking it to FSL Madhuban, Karnal. His affidavit is silent to the effect that the samples were handed over to him on 4.8.97 by Inspector Mahabir Singh. It rather indicates that he was deputed as MHC (Incharge of the Malkhana) on 27.8.97. The substantive evidence of Inspector Mahabir Singh indicates that he had deposited the case property with MHC on 4.8.97. Who was the Incharge of the Malkhana on 4.8.97, is again a question which is unanswered. There is no evidence on the file in this regard. Who kept the case property with him from 4.8.97 upto 27.8.97, the prosecution has led no evidence in this regard. In view of the aforesaid factual position the possibility of tampering with the sample cannot be ruled out especially when it reached the hands of the concerned official of FSL after the delay of more than one month. This, to my mind, is material infirmity which knocks at the bottom of the case and creates doubt in the case of the prosecution. 25. This, to my mind, is material infirmity which knocks at the bottom of the case and creates doubt in the case of the prosecution. 25. Since I am acquitting the appellant primarily on non-compliance of statutory provisions of Section 50 of the Act and taking into account another material infirmity with regard to non-deposit of the sample in the Malkhana, I do not feel the necessity of entering into any more discussion with regard other weaknesses pointed by the learned counsel for the appellant. For the reasons aforesaid, I hold that the prosecution has miserably failed to prove its case beyond reasonable doubt and the appellant is entitled to the benefit of acquittal. Resultantly, the appeal is allowed. The conviction and sentence awarded to the appellant by the learned trial Court is set aside. The appellant is stated to be in custody. He shall be set at liberty forthwith, if not required in any other case.