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2005 DIGILAW 970 (PNJ)

Gurcharan Singh v. State Of Punjab

2005-09-09

UMA NATH SINGH

body2005
Judgment Uma Nath Singh, J. 1. This criminal appeal arises out of a judgment dated 8.12.1999 passed by the learned Addl. Sessions Judge, Bhatinda in Regular Trial No. 223 of 15.4.1998 (N.D.P.C. File No. 42 of 29.7.1994), holding the accused-appellant guilty of an offence punishable under Section 18 of the Narcotic Drugs and Pschotropic Substances Act (hereinafter referred to as "the Act") and sentencing him to undergo 10 years R.I. with a fine of Rs. 1,00,000/-, or in default of payment of fine to further undergo R.I. for one year. 2. The prosecution case, as set out in para No. 2 of the impugned judgment, on reproduction, reads as under :- "The prosecution case against the accused, in brief, if that as per directions of Inspector Amar Singh, Sh. Guljar Singh SI (PW-2) of CIA Staff, Bhatinda, accompanied by HC Darshan Singh and some other police officials on 2.3.1994 at about 4 p.m. organised `nakabandi on the crossing of passages in the area of village Chughe Khurd. At about 5 p.m. accused Gurcharan Singh was spotted coming from the side of village Teona, while carrying a `tin in his hand and he was apprehended on suspicion. In the mean-time one Darshan Singh s/o Dhanna Singh also reached there and he was joined in the police party. As it was doubted by SI Guljar Singh that accused was carrying some contraband material in the said `Tin Ex. P-1 and on being inquired, the accused also told him that he was carrying some Opium in the same, so to conduct the search of the accused, SI Guljar Singh sent a wireless message to depute some Gazetted Officer of Police. Consequently Sh. Amrik Singh DSP reached the spot at about 6 p.m. and when in his presence the search of the accused as well as the tin carried by him was conducted that was found containing Opium, which on weighing was found to be 8 kgs, wrapped in a glazed paper. SI Guljar Singh separated 10 grams of the recovered material as a representative sample and sealed the same with his seal bearing impressions `GS. The residue Opium was also converted into a parcel and was sealed into the same tin Ex. P-1 which alongwith the sample parcel was taken into police possession through a recovery memo Ex. PW, in the presence of said Sh. The residue Opium was also converted into a parcel and was sealed into the same tin Ex. P-1 which alongwith the sample parcel was taken into police possession through a recovery memo Ex. PW, in the presence of said Sh. Amrik singh DSP, HC Darshan Singh and Darshan Singh son of Dhanna Singh, who also attested the same. A cash of Rs. 75/-, recovered from the accused, was also seized through another recovery memo Ex. PJ. Accused was arrested by disclosing him the grounds of arrest vide Ex. PF and to this effect ruqa Ex. PG was scribed and sent to P.S. Saddar, Bhatinda, which formed the basis of formal FIR Ex. PG/1. A special report Ex. PK was sent to the higher authorities, the statements of witnesses were recorded and after completion of necessary investigation on the spot, accused was brought and handed over to Sh. Joga Singh (PW-1), who was then acting as SHO, P.S. Saddar, Bhatinda. On this ASI Joga Singh verified the investigation and he also put his seal on the parcel constituting the case property, Ex. P-1 as well as the sample parcel and also prepared a memo Ex. PA. On the next day accused alongwith case property was produced before the learned Illaqa Magistrate after preparing inventory Ex. PB of the goods recovered from the accused who made an order Ex. PC regarding the deposit of the case property in the judicial malkhana. The sample was also sent to Chemical Examiner, Patiala, who vide his report Ex. PD, found and declared the same to be Opium and as such after the completion of necessary investigation into this case, police report was filed against the accused on 10.6.94 before the learned Addl. Chief Judicial Magistrate, Bhatinda." 3. Assailing the prosecution case and the judgment of conviction and sentence recorded by learned Addl. Sessions Judge, learned counsel for the appellant raised an eleven fold submissions. The first submission of learned counsel for the appellant is that the mandatory provisions of Section 50 of the Act were not complied with although the accused appellant was carrying a tin in his hands, which contained the contraband opium and he had a legal right of being searched in the presence of a Magistrate or Gazetted Officer. The first submission of learned counsel for the appellant is that the mandatory provisions of Section 50 of the Act were not complied with although the accused appellant was carrying a tin in his hands, which contained the contraband opium and he had a legal right of being searched in the presence of a Magistrate or Gazetted Officer. Learned counsel in support of this contention, cited five judgments of Honble the Apex Court reported in (i) 1991(1) RCR(Crl.) 736 (State of Punjab v. Balbir Singh; (ii) 1999(3) RCR(Crl.) 533 (State of Punjab v. Baldev Singh; (iii) (1998)8 SCC 534 (Namdi Francis Nwazor v. Union of India and another); (iv) 1998(4) RCR(Crl.) 513 (Guljar Singh v. State of Haryana); and 2002(2) RCR(Crl.) 724 (Ram Bharosi v. State of Rajasthan). Learned counsel also cited a judgment of this Court reported in 2004(4) RCR(Crl.) 260 (Mohan Singh v. State of Punjab) (P&H) (FB). The second limb of the submissions of learned counsel for the appellant is that there was an illegal retention of the case property by Joga Singh, ASI (PW-1). According to learned counsel, PW-1 admitted that he had not deposited the case property, including the sample, in the Malkhana and instead had kept in his custody. That apart, PW-1 has also not given any reason as to why he kept the case property and sample in his custody and failed to deposit it with Moharrir Head Constable of the Police Station for a long period of 13 days. According to learned counsel, in every Police Station, a register known as `Register No. 19 is maintained, which contains all such entries of the case property deposited and taken out of the Malkhana but herein there is no such entry whatsoever in that register. Learned counsel also contended that this lapse on the part of PW-1 itself is sufficient to discard the prosecution case. Thirdly, learned counsel submitted that there was a fatal delay in despatch of the sample to the Laboratory as it was illegally retained by PW-1 from 3.3.1994 to 16.3.1994. The sample was sent to the Laboratory through Constable Darshan Singh (PW-5) only on 16.3.1994 and again there is no explanation for such inordinate delay. Learned counsel referred to two judgments of this Court reported in (i) 1997(1) RCR(Crl.) 414 (Narain v. State of Haryana) and (ii) 1998(1) RCR(Crl.) 146 (Ramesh v. State of Haryana) (P&H). The sample was sent to the Laboratory through Constable Darshan Singh (PW-5) only on 16.3.1994 and again there is no explanation for such inordinate delay. Learned counsel referred to two judgments of this Court reported in (i) 1997(1) RCR(Crl.) 414 (Narain v. State of Haryana) and (ii) 1998(1) RCR(Crl.) 146 (Ramesh v. State of Haryana) (P&H). In both the cases, this Court recorded acquittal also on the ground of delay in sending the sample to the Scientific Laboratory. The fourth submission of learned counsel for the appellant is that in the Court examination under Section 313 Cr.P.C., the appellant was not put any question on the circumstances like illegal retention of the sample by PW-1 and its delayed dispatch for chemical examination. Learned counsel placed reliance on two judgments of this Court reported in (i) 2004(3) RCR(Crl.) 262 (Baldev Singh v. State of Punjab) and (ii) 1996(2) RCR 235 (Shaukat Ali v. State of Haryana). In the said cases, this Court recorded acquittal as a result of absence of link evidence. The fifth submission of learned counsel is that the prosecution case has suffered a serious set back, inasmuch as, only one sample of 10 grams of the contraband item was taken whereas, the relevant provisions mandate for taking of two samples of 25 grams each. Learned counsel referred to a judgment of this Court in support, which is reported in 1998(1) RCR(Crl.) 133 (Chhabil Das v. State of Haryana). In that case also, conviction was set aside on that ground. The sixth submission of learned counsel is that Darshan Singh, a public witness, was given up without sufficient explanation. Learned counsel referred to two judgments of this Court to substantiate this submission. They are reported in (i) 1998(1) RCR(Crl.) 519 (Mahi Pal Singh v. The Chandigarh Administration, Chandigarh) and (ii) 1995(3) RCR(Crl.) 505 (Bhoolan v. State of Punjab). As per the seventh contention of learned counsel, the seal affixed on the seizure was not handed-over to a public witness, but it was given to HC Darshan Singh, who was a member of the police party which laid the trap. Learned counsel relied upon a judgment of this Court reported in 1997(3) RCR(Crl.) 351 (Surjit Singh v. State of Punjab). In that case, the accused was given benefits of doubt on that count and was acquitted. Learned counsel relied upon a judgment of this Court reported in 1997(3) RCR(Crl.) 351 (Surjit Singh v. State of Punjab). In that case, the accused was given benefits of doubt on that count and was acquitted. The eighth argument of learned counsel is that a CFSL form was not prepared nor deposited with the Moharrir Head Constable. According to learned counsel, it was necessary to prepare this form on the spot for being sent to the Forensic Science laboratory, Patiala, along with the sample. In support of this submission, learned counsel referred to two judgments of Delhi High Court reported in (i) 1999(4) RCR(Crl.) 632 (Rajan Ali v. The State (Delhi Administration) and (ii) 2000(1) RCR(Crl.) 306 (Ramesh Prakash v. State). In both the cases, conviction was set aside on that ground. Another submission of learned counsel (being the ninth one) is that in the instant case, the complainant and the Investigating Officer are the same person. According to learned counsel, recovery was effected by Guljar Singh, SI (PW-2) and he also sent a ruqa to the Police Station for the registration of an FIR. Learned counsel also referred to a judgment of this Court in his support, which is reported in 1996(2) RCR(Crl.) 707 (Risala v. State of Haryana). In that case, after considering ratio of the judgments of Honble the Apex Court so also of the High Courts, learned Judge granted bail to the accused-appellant. The tenth contention of learned counsel is that the Investigating Officer did not offer his own search before taking search of the accused. Learned counsel referred to a judgment of Delhi High Court reported in 1997(3) RCR(Crl.) 751 (Babu Khan v. State (Delhi Administration), wherein a judgment of Honble the Apex Court reported in AIR 1969 SC 58 (State of Bihar v. Kapil Singh) has also been discussed although this judgment has been rendered only in a bail case. The eleventh submission of learned counsel is that the DSP, before whom the search was conducted, was ad ad hoc DSP and was not a regularly promoted one. According to learned counsel, on that count also, the prosecution case appears to be infirm. Learned counsel referred to a judgment of this Court reported in 1997(1) RCR(Crl.) 9 (Jagir Singh v. State of Punjab). According to learned counsel, on that count also, the prosecution case appears to be infirm. Learned counsel referred to a judgment of this Court reported in 1997(1) RCR(Crl.) 9 (Jagir Singh v. State of Punjab). This judgment is based on a judgment of Honble the Apex Court reported in Judgments Today 1994(2) SC 108 (State of Punjab v. Balbir Singh). Therein also, the Court has recorded acquittal on that count. 4. On the other hand, learned counsel for the State argued only on the basis of recovery memo and the evidence of SI Guljar Singh (PW-20), Investigating Officer, and Amrik Singh, DSP (PW-3), who, according to her, have supported the prosecution case in toto. Learned counsel for the State also submitted that provisions of Sections 50, 52, 52-A and 57 of the Act were duly complied with, inasmuch as, when the sample reached the Chemical Examiner, Patiala, the seals were found to be intact and it was found to be opium in Chemical examination. Learned counsel reiterated that the prosecution case on the material point of recovery stands fully established by substantive evidence of ASI Joga Singh (PW-1), HC Nirmal Singh (PW-4) and Darshan Singh (PW-5). According to learned counsel PW-5 also gave an affidavit (Ex. PL), which provided for a link evidence showing proper compliance of Sections 52-A and 55 of the Act. Learned counsel entered the submissions of learned counsel for the appellant by arguing that the police had no ill will, animus or any other ulterior motive to implicate the accused-appellant. 5. On due consideration of rival submissions, it appears that the mandatory provisions of Section 50 of the Act have not been complied with as in the present circumstances, the accused-appellant had a legal right to be searched in the presence of a Magistrate or Gazetted Officer. It seems that a police party headed by SI Gulzar Singh (PW-2) laid a trap and organized nakabandi on the directions of Inspector Amar Singh, who had received a secret information. It appears that the said information was not disclosed to the police party nor does it seem to have been mentioned in the police record. Even Inspector Amar Singh has not been examined by the prosecution. It appears that the said information was not disclosed to the police party nor does it seem to have been mentioned in the police record. Even Inspector Amar Singh has not been examined by the prosecution. In the cross-examination of PW-2, it is noticed that a wireless message was sent to a DSP and in his examination-in-chief, it seems that the accused-appellant was given a partial option of being searched only in the presence of a Gazetted Officer and NOT a Magistrate. In paras 24 and 25 of the judgment of a 5-Judge Bench of Honble the Apex Court reported in 1993(3) RCR(Crl.) 533 (SC) (State of Punjab v. Baldev Singh, provisions of Section 50 of the Act have been dealt with as under :- "24. To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the concerned person of the existence of his right to have his search conducted before a Gazetted Officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the concerned personal orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the Court, that the requirements of Section 50 were duly complied with. 25. The safeguard or protection to be searched in presence of a Gazetted Officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of Illicit Drugs and Narcotic Substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50 of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in presence of a Gazetted Officer or a Magistrate is a necessary sequence for enabling the concerned person to exercise that right under Section 50 because after Maneka Gandhi v. Union of India, 1978(1) SCC 248, it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not "responsible, (reasonable ?) fair and just" and when a statute itself provides for a `just procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a Gazetted Officer or a Magistrate, would be violative of the `reasonable, fair and just procedure and the safeguards contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be `fair, just or reasonable procedure. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be `fair, just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a `reasonable, fair and just procedure." 6. It is also noticed from the records that the police failed to inform the accused-appellant that he had a legal right of being searched in presence of a Magistrate or a Gazetted Officer. This aspect has also been dealt with in the case of Baldev Singh (supra) and para No. 23 thereof, on reproduction, reads as under :- "23. It would, thus, be seen that none of the decisions of the Supreme Court after Balbir Singhs case have departed from that opinion. At least none has been brought to our notice. There is, thus, unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a Gazetted Officer or a Magistrate and that the failure to so inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is in-built in Section 50. Similarly, if the concerned person requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad." 7. As regards the second contention of learned counsel for the appellant, it is noticed that Joga Singh, ASI (PW-1) has admitted that he did not deposit the case property, including the sample, in the Police Malkhana and that he had retained the same in his own custody. It is further noticed that PW-1 has not given any reason as to why he failed to do so. From the perusal of the records, it is obvious that PW-1 had retained the case property for 13 days from 3.3.1994 to 16.3.1994. It is also noticed that there is no such entry in Register No. 19 said to be maintained in every Police Station as regard the deposit and taking out of any property in the Police Station. That apart, ASI Joga Singh (PW-1), by retaining the case property illegally for 13 days, also failed to dispatch the sample to the Forensic Science Laboratory in time for examination and he sent it only on 16.3.1994 through Constable Darshan Singh (PW-5). Here also, PW-1 failed to give any explanation. This Court in the aforesaid cases of Narain and Ramesh has held that an unexplained delay in sending the sample to FSL would cause a dent in the prosecution case. 8. It is also noticed that in his Court examination under Section 313 Cr.P.C., the accused-appellant was not asked any question on the point of delay in sending the sample to the FSL and also the illegal retention of the case property for 13 days in the custody of ASI Joga Singh (PW-1). Thus, it appears that the accused-appellant has suffered a serious prejudice on that count and further a link evidence in the prosecution case is conspicuous by its absence. This aspect has also been considered in the judgment in Honble the Apex Court in the case of Baldev Singh (supra). 9. Yet another infirmity, which is evident from the perusal of the records, is that only one sample of 10 grams was taken whereas, the rules mandate for two samples of 25 grams each. Besides, there is no satisfactory examination (explantation ?) as to why a public witness to search and seizure, Darshan Singh was given up. In terms of the rules and settled principles of law, the seal affixed on the seized article should have been handed-over to the public witness, whereas, it was given to HC Darshan Singh. Besides, there is no satisfactory examination (explantation ?) as to why a public witness to search and seizure, Darshan Singh was given up. In terms of the rules and settled principles of law, the seal affixed on the seized article should have been handed-over to the public witness, whereas, it was given to HC Darshan Singh. The prosecution also failed to prepare a CFSL form on the spot, which creates a further doubt about the credibility of the entire prosecution exercise. This is an important safeguard against an allegation of tampering with the sample. It is noticed that Gulzar Singh, SI (PW-2) was the complainant and also the Investigating Officer of the case, which appear to be contrary to the principles of natural justice. In addition to that, PW-2, before taking search of the accused- appellant did not appear to have given his own search. Further, Amrik Singh, DSP (PW-3), before whom the accused-appellant was given partial offer of being searched, was only promoted as an ad-hoc DSP on the date of search and seizure and the prosecution could not bring on record any Gazette Notification that the said DSP was a Gazetted Officer. 10. In the premises discussed herein above, Crl. Appeal No. 48-SB of 2000 is hereby allowed and resultantly, the impugned judgment dated 8.12.1999 passed by the learned Additional Sessions Judge, Bhatinda in Regular Trial No. 223 of 15.4.1998 is hereby set aside. Thus, accused-appellant Gurcharan Singh son of Pritam Singh is acquitted of the charge under Section 18 of the NDPS Act and directed to be released forthwith.