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2005 DIGILAW 920 (PNJ)

Dhagla Ram v. State Of Punjab

2005-08-31

AMAR DUTT

body2005
Judgment Amar Dutt, J. 1. Dhagla Ram has filed the present to challenge the conviction and sentence imposed against him under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act") by the Special Judge, Gurdaspur on 21.3.2002. 2. According to the prosecution case on 9.1.2001 a police party headed by ASI Sulakhan Singh on patrol and general checking duty was holding a naka at T point Sunder Chak in the area of village Malakpur. Pargat Singh PW was joined as an independent witness. Appellant was seen coming from the said of Malakpur chowk holding a Jhola in his hand. He was wearing a Fauji uniform and seen the police party tried to slip away and was apprehended on suspicion that he has some contraband substances in his possession. He was when apprised of his right to have his person searched by a Gazetted Officer or a Magistrate, opted to be searched by a Gazetted Officer whereupon wireless message was flashed and in response thereto PW-4 Ms. Vibhu Raj, Superintendent of Police, Pathankot came to the spot. She introduced herself to the appellant and apprised him that she was a Gazetted Officer and whether he wanted to be searched by her or by some other Gazetted Officer or Magistrate. Appellant gave his consent to be searched by PW-4 whereafter the search was carried out as per rules and from the Jhola 5 Kilograms of opium was recovered, out of which, 10 grams was taken as a sample and thereafter residue as well as sample were converted into a sealed parcel and sealed with the impression SS and VR and the same were taken into possession through recovery memo Ex. PC. A Ruqqa Ex. PF incorporating the fact of the recovery was drawn up and sent to the Police Station on the basis of which a formal FIR Ex. PF/1 was recorded and the Investigating Officer thereafter prepared rough site plan Ex. PG with correct marginal notes and recorded statements of the witnesses and deposited the case property with Moharrir Head Constable in the Police Station. Samples were sent for examination by the Chemical Examiner and on receipt of report Ex. PJ and on completion of investigation a challan was put in against the appellant under Section 18 of the Act. 3. After filing of the challan, an application was moved by the Brig. Samples were sent for examination by the Chemical Examiner and on receipt of report Ex. PJ and on completion of investigation a challan was put in against the appellant under Section 18 of the Act. 3. After filing of the challan, an application was moved by the Brig. A.K. Sehgal, Brigade Commander, Air Defence Brigade for handing over the custody of the appellant, which was disposed of on 13.2.2001 by passing the following order :- "This is an application laid by the Military authority alleging therein that the custody of Dhagla Ram be given to the Army for trial by Army Court. But in my opinion, custody of Dhagla Ram cannot be given to the Army Authority on account of the bar as enshrined in Section 36-A of the Narcotic Drugs and Psychotropic Substances Act, which says that notwithstanding anything contained in the Code of Criminal Procedure all offences under this Act shall be triable only by the Special Court constituted for the area in which the offence has been committed. In consequence, the application is disallowed." 4. The aforesaid order was challenged by the Union of India in Criminal Revision No. 1009 of 2001. This Revision Petition was ultimately dismissed as withdrawn by K.S. Garewal, J. and the trial Court was directed to expedite the trial. 5. On going through papers, the Special Judge found that a prima facie case was made out against the appellant under Section 18 of the Act and accordingly framed charge against him to which he pleaded not guilty. Thereafter, prosecution was called upon to lead its evidence. 6. To bring home the charge, the prosecution examined HC Paramjit Kumar as PW1, C. Mehnga Singh as PW2, ASI Tarlochan Singh as PW3, Ms. Vibhu Raj, S.P. as PW4 and ASI Sulakhan Singh as PW5. 7. When examined under Section 313 of the Code of Criminal Procedure, appellant denied all the circumstances and asserted that he was falsely implicated at the hands of the local police. He examined Constable Gurpartap Singh as DW1 in his defence. 8. After hearing the arguments, the trial Court convicted the appellant under Section 18 of the Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. Hence, the present appeal. 9. 8. After hearing the arguments, the trial Court convicted the appellant under Section 18 of the Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months. Hence, the present appeal. 9. I had heard arguments in the appeal and thereafter on 27.6.2005, while dictating the judgment, the request of Brig. A.K. Sehgal had come to my notice and consequently, I had issued notice to the learned counsel, who was appearing for the Union of India in Criminal Revision No. 1009 of 2001 and required him to seek instructions as to what was the position, which was being taken by the Union of India regarding Criminal Revision No. 1009 of 2001. He had after obtaining requisite instructions made a statement that since the appellant is no longer on the roll of the Army and the period within which the trial by the Army Authority was required to be completed had already expired, therefore, Union of India was not pressing for the custody of the appellant. 10. Although, the Union of India had taken this plea, yet I am, prima facie, of the view that the bar of Section 36-A of the Act, which had been relied upon by the trial Court is clearly misconceived as the same had to be read in the light of Section 36-C of the Act, which clearly specifies that the provisions of the Code of Criminal Procedure would apply to all the trials conducted under the Act. Section 36-A of the Act merely indicates that a Special Court set up under the Act alone would be competent to try the case but that would not mean that the Special Court would be absolved from adhering to the bar contained in Section 475(2) of the Code of Criminal Procedure. 11. On merits, on behalf of the appellant, the conviction and sentence is sought to be challenged on the ground that in view of the fact that there is no entry in the Register No. 19 maintained in the Malkhana of Police Station Sadar, Pathankot about the deposit of 5 kilograms opium that is alleged to have been recovered from the appellant, no sanctity can be attached to the report of Chemical Examiner regarding the composition thereof. In fact ASI Sulakhan Singh admits that case property and the accused were kept by him in the lock up of Police Post, Sujanpur of which he was incharge and therefore, there is a blatant violation of Section 55 of the Act, on account whereof the possibility of the sample having been tampered with cannot be ruled out. It was also submitted that in the statement under Section 313 Cr.P.C., the circumstances of the case property having been sent to the Malkhana with seals intact had not been put to the appellant and therefore, the same cannot be taken into consideration and made the basis of conviction of the appellant. The number of seals which were found on the sample when it was received by the Chemical Examiner do not tally with the number of seals that have been affixed on the same and that too renders doubtful the entire prosecution case. Even the mandatory provisions of Section 50 of the Act had not been complied with. 12. On behalf of the State, it was submitted that PW5 ASI Sulakhan Singh being incharge of the Police Post, Sujanpur immediately after apprehending the appellant apprised him of his right to get a search conducted in the presence of a Magistrate or a Gazetted Officer and on his opting the search being conducted before a Gazetted Officer, he informed PW4 Vibhu Raj and in her presence recovery of 5 kilograms of opium was effected. After taking a sample of 10 grams from the bulk recovered, the sample as well as remaining opium was sealed with seals of `SS and `VR on 9.1.2001. From the statement of PW4 Vibhu Raj, it is evident that on 10.1.2001 the sample as well as bulk were put in a double lock in Malkhana and therefore, there is no merit in the submission of the learned counsel for the appellant. 13. I have carefully considered the rival contentions and with the assistance of learned counsel for the parties perused the record. 14. According to the witnesses in the present case, recovery in the present case was effected on 9.1.2001. On the same day, the sample of 10 grams as well as remaining opium were taken into possession through recovery memo Ex. PC, which was attested by PW4 Vibhu Raj, Pargat Singh and PW3 ASI Tarlochan Singh. 14. According to the witnesses in the present case, recovery in the present case was effected on 9.1.2001. On the same day, the sample of 10 grams as well as remaining opium were taken into possession through recovery memo Ex. PC, which was attested by PW4 Vibhu Raj, Pargat Singh and PW3 ASI Tarlochan Singh. The statements of both PW4 Vibhu Raj as well as PW5 Sulakhan Singh indicate that sealed parcels, sample seals and the docket were handed over to PW3 ASI Tarlochan Singh and the parcels along with sample seals were taken into possession vide recovery memo Ex. PC by PW5 ASI Sulakhan Singh. PW5 ASI Sulakhan Singh further states that on 10.1.2001 the accused along with case property was produced before the Illaqa Magistrate from whom an order was obtained for keeping the case property in double lock, which was done on 11.1.2001. There is no averment about the sample having been handed over to the Moharrir Head Constable and from the statement of PW1 HC Paramjit Kumar, it is evident that on 15.1.2001 ASI Sulakhan Singh had handed over to him one sample parcel containing opium 10 grams along with sample seals and docket and he handed over the same to C. Mehnga Singh for its onward deposition with the Chemical Examiner, Jalandhar. He handed over the receipt of deposit to him on 16.1.2001. None tampered with it so long it remained in his custody. As is evident from the statement, sample parcel was handed over to the Moharrir Head Constable only on 15.1.2001 and from 9.1.2001 its custody remained with ASI Sulakhan Singh. Therefore, the possibility of the original sample having been tampered with cannot be ruled out. Another aspect of the case is that the seals after use had been handed over to ASI Tarlochan Singh and not to Pargat Singh, the independent witness who was joined at the time of investigation but was not even examined as a prosecution witness. 15. Taking all these factors into consideration, I am of the considered view that from the evidence on record, it cannot be inferred with certainty that sample, which was tested was actually the sample, which was taken from the appellant and therefore, it would not be possible for this Court to uphold the conviction. 16. 15. Taking all these factors into consideration, I am of the considered view that from the evidence on record, it cannot be inferred with certainty that sample, which was tested was actually the sample, which was taken from the appellant and therefore, it would not be possible for this Court to uphold the conviction. 16. For the reasons recorded above, I accept the appeal and set aside the conviction and sentenced recorded against the appellant and acquit him of the charge framed against him. 17. Before parting with the judgment, I would like to observe that the casualness with which Army authorities have pursued their application under Section 475(2) Cr.P.C. leaves much to be desired. This section had, in all probability, been incorporated to give an opportunity to the Army authorities to assess the reason which forced a person serving in the Army to resort to crime. This information would help the authorities to assess the pressure which works upon the men in uniform and prevent recurrence of such incidents in future. Even according to the appellant he had been illegally detained by the Police for interrogation in connection with J&K militants. One would have expected the military intelligence to look into the matter for tapping such sensitive information as may be revealed during the course of investigation. This course would also have prevented other branches of the Government to have access to information, which should normally be available only to the Army authorities. The manner in which the Union of India has been approaching the subject shows a certain casualness of response and highlights the non- seriousness of approach, the ramifications whereof may at times affect national security. We hope that in future applications under Section 475(2) of the Cr.P.C. would be filed only after assessing all these aspects and pursued to its logical conclusion and not in a half-hearted manner. 18. A copy of this order be sent to the Chief of the Army Staff for information.