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2005 DIGILAW 647 (PNJ)

Des Raj v. State Of Punjab

2005-05-25

VIRENDER SINGH

body2005
Judgment Virender Singh, J. 1. Vide impugned judgment of Special Judge, Roopnagar dated 22/23.4.1999, Des Raj son of Ram Singh stands convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter for short `the Act) and has been sentenced to undergo RI for 10 years and to pay a fine of Rs. 1.00 lac; in default thereof to undergo further RI for two years. Hence this appeal. 2. Since the appellant is in custody, the main appeal was ordered to be heard at an early date. 3. In brief the case of the prosecution is that on 26.4.1998 SI Prem Singh (PW-2) and other police officials were on patrol duty and were going from Police Station towards Naya Nangal. The appellant was seen coming from the side of Mehatpur. On seeing the police party, he tried to move towards the gate of the school, but was apprehended on the basis of the suspicion that he was keeping some contraband material with him. SI Prem Singh then apprised the accused that he had suspicion against him for carrying some intoxicating material and gave him the offer as to whether he wanted to get his search conducted in the presence of some Gazetted Officer or Magistrate. The appellant reposed confidence in him and consequently, a consent memo Exhibit PC was prepared, which was signed by the appellant and attested by the Head Constable Bhag Singh and by Vijay Kumar, who were accompanying Prem Singh. A wireless message was also flashed to ASP Ram Singh to reach the spot. After ASP Ram Singh reached the spot, the search of the appellant was conducted in his presence. He had tied a woollen cloth around his waist in which charas wrapped in a polythene paper was kept. The entire charas on weighment turned out to be 1 kg 750 gms. A sample of 10 gms was taken out of it. The recovered charas and sample were then converted into a form of parcel. Both the parcels were sealed with the seal of Investigating Officer, bearing impression PS and after the use, the seal was handed over to ASP Ram Singh. A sample seal Exhibit P-2 was separately prepared. Both, sample as well as the case property were taken into possession vide memo Exhibit PA, which was attested by ASP Ram Singh and other witnesses. A sample seal Exhibit P-2 was separately prepared. Both, sample as well as the case property were taken into possession vide memo Exhibit PA, which was attested by ASP Ram Singh and other witnesses. Personal search of the appellant was also conducted in which a sum of Rs. 150/- was recovered. A separate memo Exhibit PB was prepared in this regard. Ruqa Exhibit PD was sent to the Police Station on the basis of which formal FIR Exhibit PD/1 was recorded. Rough site plan Exhibit PE was also prepared at the spot. After disclosing the grounds of arrest, the appellant was arrested vide Exhibit PF Other formalities were also completed at the place of recovery. The case property was then deposited by SI Prem Singh with MHC. A special report was also sent to the Illaqa Magistrate as well as SSP, Ropar. After the receipt of the report of the Chemical Examiner Exhibit PK, which declared the contents of the sample as charas, the appellant was challaned. He was consequently charged under Section 20 of the Act. As stated above, he has now suffered conviction. 4. The prosecution, in order to substantiate the charge has examined ASP Ram Singh (PW-1) and SI Prem Singh (PW-2). The recovery has been effected in the presence of these two witnesses. SI Prem Singh is the Investigating Officer also. The investigation conducted by him has been detailed hereinabove. Constable Rajesh Kumar (PW-3) has tendered his affidavit Exhibit PG. Similarly Head Constable Balbir Singh (PW-4) and Constable Amar Chand (PW-5) have also tendered their affidavits PH and PJ, respectively. 5. The plea of the appellant is that he has been falsely implicated in this case by the Police as he was working as an employee in a Nangal Gas Agency; that the police had been pressuring him to supply the gas illegally for which he refused and for this reason the present case has been planted on him. However, no defence was adduced by the appellant. 6. I have heard Ms. Satpreet K. Grewal, learned counsel for the appellant and Mr. S.C. Bhardwaj, learned DAG, Punjab. With their assistance, I have also gone through the entire record. 7. Ms. Grewal contends that in this case there is non-compliance of Section 50 of the Act and that this infirmity by itself is enough to discard the case of the prosecution. Satpreet K. Grewal, learned counsel for the appellant and Mr. S.C. Bhardwaj, learned DAG, Punjab. With their assistance, I have also gone through the entire record. 7. Ms. Grewal contends that in this case there is non-compliance of Section 50 of the Act and that this infirmity by itself is enough to discard the case of the prosecution. Dwelling upon her arguments, she submits that the appellant was initially given offer by SI Prem Singh (PW-2) of getting his search conducted in the presence of a Gazetted Officer or Magistrate and in this regard consent memo Exhibit PC was also prepared, in which the appellant had reposed confidence in him. SI Prem Singh did not conduct the search himself and instead called ASP Ram Singh at the spot. The case of the prosecution then is that after ASP Ram Singh reached the spot, he also disclosed his identity to the appellant and again gave to him its to whether he wanted to get his search conducted in his presence or before some Gazetted Officer or Magistrate. The appellant then reposed confidence in him (ASP) and thereafter, a direction was given to SI Prem Singh for conducting the search. In this situation, according to the learned counsel, the document Exhibit PC loses its significance and compliance of Section 50 of the Act has been done afresh by ASP Ram Singh. The second offer given by ASP Ram Singh is not strictly in accordance with the provisions of Section 50 of the Act, as he could not offer the search to be conducted in his presence. The appellant, thus, deserves acquittal on this count alone, the learned counsel so contends. 8. The learned counsel then contends that there is non-compliance of Section 56 of the Act as there is no evidence to the effect that the case property was kept intact by SHO of Police Station Nangal in his safe custody till it was presented before the Magistrate. This is also fatal to the case of the prosecution. 9. The other attack made on the prosecution is that the link evidence is also missing in this case. In this regard, she has drawn my attention to the affidavits Exhibit PH of MHC Balbir Singh and PJ of Constable Amar Chand. This is also fatal to the case of the prosecution. 9. The other attack made on the prosecution is that the link evidence is also missing in this case. In this regard, she has drawn my attention to the affidavits Exhibit PH of MHC Balbir Singh and PJ of Constable Amar Chand. The main discrepancy pointed out by the learned counsel is that according to the affidavit tendered by Balbir Singh MHC, he states that on 26.4.1998 SI Prem Singh had deposited with him the sample parcel and the remaining charas. He had handed over the sample parcel of 10 gms of charas to Amar Chand on 30.4.1998. On the other hand, the affidavit Exhibit PJ tendered by Amar Chand indicates that he was given the sample parcel on 28.4.1998 by MHC Balbir Singh and he had taken the same to the Director FSL, after getting the docket prepared from the office of SSP Ropar. On the same day he had brought the sample bag as some objection was raised. He then talks about taking the sample on 30.4.1998. From this infirmity, the learned counsel has contended that the MHC does not say a word about the fact that the sample was taken out of the Malkhana on 28.4.1998. Since the sample parcel remained out of Malkhana for two days, the possibility of tampering with it, cannot be ruled out. 10. Lastly, the learned counsel has pointed out certain discrepancies in the statements of the official witnesses. 11. On the basis of the aforesaid submissions, the learned counsel prays for acquittal. 12. While controverting the submissions of Ms. Grewal, the learned State counsel submits that the recovery from the appellant is of heavy quantity and same has been effected in the presence of ASP, who is a senior police official. Even otherwise, there is no reason to disbelieve the official witnesses, who has no animosity with the appellant. The learned State counsel then submits that according to Exhibit PC, the compliance of Section 50 of the Act is complete in all respects and the appellant, thus, has no escape from his liability. 13. Even otherwise, there is no reason to disbelieve the official witnesses, who has no animosity with the appellant. The learned State counsel then submits that according to Exhibit PC, the compliance of Section 50 of the Act is complete in all respects and the appellant, thus, has no escape from his liability. 13. After giving my thoughtful consideration to the rival contentions of either side and perusing the entire record very minutely, I am of the view that the prosecution has not been able to prove the charge against the appellant beyond any shadow of reasonable doubt and as such he deserves acquittal. My reasoning for arriving at the said conclusion is as under. 14. Admittedly, Section 50 of the Act is attracted in this case. The appellant was keeping the charas very close to this person by tying it around the waist in a cloth. It amounts to a search of a person as observed by the Larger Bench of the Honble Apex Court in the case of State of Himachal Pradesh v. Pawan Kumar, 2005(2) RCR(Crl.) 622 (SC) : 2005(5) Supreme Court Cases Page 373. 15. Let us now re-examine the evidence on the file with regard to compliance of Section 50 of the Act. The case set up by the prosecution is that SI Prem Singh initially apprised the appellant about the offer which was reduced into writing as Exhibit PC asking him as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate upon which he reposed confidence in SI Prem Singh. Thereafter, ASP Ram Singh was called at the spot. He also gave another offer to the appellant, which is oral in nature. There is no dispute that offer need not to be given in writing, it can be oral as well. But the settled legal position is that it has to be strictly according to the provisions of the Act. In my considered view, the offer given by ASP Ram Singh (PW-1) supersedes the initial offer Exhibit PC as SI Prem Singh does not go by that. But the settled legal position is that it has to be strictly according to the provisions of the Act. In my considered view, the offer given by ASP Ram Singh (PW-1) supersedes the initial offer Exhibit PC as SI Prem Singh does not go by that. The evidence now is that after ASP Ram Singh reached the spot, he disclosed his identity to the appellant and then gave fresh offer to him as to whether he wanted to get his search conducted in his presence or wanted the search to be conducted before a Gazetted Officer or Magistrate. This offer is against the provisions of Section 50 of the Act. Offering the search to be conducted in the presence of ASP Ram Singh, in my considered view, was, in fact nothing but an allurement to the appellant prompting him for expressing no objection for being searched in the presence of a police official. Even otherwise, the mandatory requirement of Section 50 of the Act is that when any Officer duly authorised under Section 42 of the Act is about to search any person under the provisions of Sections 41, 42 and 43 of the Act, he shall, if so person requires, take such person, without unnecessary delay to the nearest Gazetted Officer of any of the Departments mentioned in Section 42 of the Act or to the nearest Magistrate. As per the provisions of Section 50 of the Act, a Police official cannot ask any person to get his search conducted in his presence. In the case in hand, the evidence adduced is that ASP Ram Singh first of all disclosed his identity and then gave the offer. The relevant extract from the statement of ASP Ram Singh is reproduced as under;- "........ I reached at the spot within ten minutes and on reaching there I enquired regarding name of the accused who disclosed his name to be Des Raj. Thereafter, I disclosed my identity to the accused and offered to the accused whether he wanted his search to be conducted in my presence or if he wanted his search to be conducted before some other Gazetted Officer or Magistrate. Accused reposed confidence in me. I directed Prem Singh to conduct search of the accused on which it was found that the accused had tied a belt under his shirt......" 16. Accused reposed confidence in me. I directed Prem Singh to conduct search of the accused on which it was found that the accused had tied a belt under his shirt......" 16. From the aforesaid evidence, it is now very clear that the offer is against the mandatory provisions of Section 50 of the Act. ASP Ram Singh has rather put himself on a better pedestal than the Magistrate. Needless to say that this offer is not only misleading but uncalled for also. 17. In the backdrop to the aforesaid discussion, it can now safely be concluded that the provisions of Section 50 of the Act have been clearly violated and the appellant deserves acquittal on this score alone. 18. At the same time, I find infirmity in the link evidence also. The prosecution has not been able to bring cogent evidence on the file with regard to the handling of the sample parcel for two days i.e. from 28.4.1998 to 30.4.1998. The affidavit tendered by Balbir Singh MHC is to the effect that sample parcel was handed over to Amar Chand on 30.4.1998, whereas according to the affidavit of Amar Chand Exhibit PJ, it was handed over to him on 28.4.1998. The sample parcel initially does not reach the office of Chemical Examiner on 28.4.1998 on account of some objections, who kept the sample with him for two days, is a question to be answered by the prosecution and in this regard, the evidence is missing. It is the bounden duty of the prosecution to prove that the sample remained intact and there was no scope of tampering with it, till it reached the office of the Chemical Examiner. May be according to the report of the Chemical Examiner, the seals were found intact but the prosecution evidence is lacking with regard to the safe custody of the sample for two days. In this situation, the possibility of tampering with it cannot he ruled out. The case of the prosecution can be seen with an eye of suspicion on this count as well. 19. No doubt the learned counsel has pointed out certain other weakness in the case of the prosecution, but I do not feel the necessity of discussing the same in the light of the aforesaid observations made by me on the main issues. 20. The net result is that the case of the prosecution fails. 19. No doubt the learned counsel has pointed out certain other weakness in the case of the prosecution, but I do not feel the necessity of discussing the same in the light of the aforesaid observations made by me on the main issues. 20. The net result is that the case of the prosecution fails. In my view, the prosecution has not been able to bring home the guilt of the accused to the hilt. 21. Consequently, the present appeal is allowed. The appellant is acquitted of the charge. Since, the appellant is stated to be in custody, he shall be released forthwith in case not required in any other case.