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2006 DIGILAW 1741 (PNJ)

Mann Singh v. State Of Punjab

2006-04-26

VIRENDER SINGH

body2006
Judgment Virender Singh, J. 1. Appellant Mann Singh (since dead) after suffering conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (for short `the Act) vide judgment of learned Sessions Judge Sangrur dated 15.5.1990 had preferred the instant appeal. He was sentenced to undergo RI for ten years and to pay a fine of Rs. One lac, in default thereof to suffer further RI for two years. The record reveals that vide order dated 7.5.2003, this Court had dismissed the appeal being abated as the appellant was stated to have died. An application (Criminal Miscellaneous No. 23316 of 2006) moved by widow of the appellant under Section 482 Cr. P.C. stands allowed, vide separate order of even date and the instant appeal has been restored to its original number. The appeal is being is disposed of on merits today itself. 2. The facts of the prosecution case in brief are than on 17.5.1989, ASI Ashok Kumar (PW-2) was present on Patiala crossing near Sangrur Town along with other police officials when Sher Singh Ex-Sarpanch of village Elwal met him. He was joined in the police party. At about 2.25 PM, a bus came from the side of Patiala. It stopped at Patiala crossing. The appellant alighted from the bus. On seeing the police party, he made an attempt to slip away but was apprehended on suspicion. ASI Ashok Kumar gave option to the appellant with regard to compliance of Section 50 of the Act. When the appellant reposed his faith in the ASI, his personal search was conducted. As a result thereof, a packet was recovered from the inner jacket underneath the shirt of the appellant, which was containing 300 grams of smack. Two samples of 10 grams each were taken out of the smack. The same were duly sealed. The reminder was also put in a tin box (Ex.P1) which was sealed by ASI Ashok Kumar with his own seal bearing inscription `AK. The samples and the tin box duly sealed were taken into possession vide recovery memo. Ex.PA. A sample of the seal (Ex.P2) was also prepared at the spot. The seal after use was handed over to Sher Singh. Ruqqa (Ex. PB) was sent to the police station, on the basis of which FIR (Ex.PB/1) under Section 18 of the Act was registered against the appellant. Rough site plan (Ex.PC) was also prepared. Ex.PA. A sample of the seal (Ex.P2) was also prepared at the spot. The seal after use was handed over to Sher Singh. Ruqqa (Ex. PB) was sent to the police station, on the basis of which FIR (Ex.PB/1) under Section 18 of the Act was registered against the appellant. Rough site plan (Ex.PC) was also prepared. On return to the police station, aforesaid Ashok Kumar deposited the sample parcel and the tin parcel with MHC Maghar Singh. The sample was sent to the Chemical Examiner for analysis. Vide report (Ex.PF), it was found to contain Diacetyle Morphine to the extent of 57.64%. The Chemical Examiner also opined that the contraband is known as heroin. After completion of investigation, the challan was presented against the appellant. He was consequently charged under Section 18 of the Act. 3. The prosecution in support of its case examined HC Parmeshwar Singh (PW-1), ASI Ashok Kumar (PW-2), the Investigating Officer, besides tendering into evidence the affidavits Ex. PD and Ex. PE of MHC Maghar Singh and Constable Harbant Singh respectively and report of the Chemical Examiner (Ex.PF). Sher Singh PW was given up as having been won over by the appellant. 4. The plea of the appellant as emerges from his statement under Section 313 of the Code of Criminal Procedure is of false implication pleading that he was taken from his house on 10.5.1989 by aforesaid Ashok Kumar, who was inimical towards him for the reason that he had deposed against the latter. It was then pleaded that on 28.4.1989, ASI Ashok Kumar had lifted the son of the appellant, kept him in illegal detention of police station Longowal and because of old enmity, he was falsely implicated in this case. 5. In his defence, the appellant examined Constable Mohinder Singh as DW1, who deposed about entries in the Daily Diary Register. HC Iqbal Rai is DW2, who was Moharrir Head Constable of police station Longowal. Harminder Singh son of the appellant appeared as DW-3. Om (sic) certified copy (Ex. DE) of telegram dated 4.5.1989. Besides this, the appellant produced certified copy of the bail application dated 10.5.1989 (Ex.DB) and certified copy of the police report (Ex.DC). 6. After appreciating the entire evidence, the learned trial Court convicted and sentenced the appellant, as already indicated above. 7. I have heard Mr. Dhirinder Chopra, learned counsel for the appellant and Mr. DE) of telegram dated 4.5.1989. Besides this, the appellant produced certified copy of the bail application dated 10.5.1989 (Ex.DB) and certified copy of the police report (Ex.DC). 6. After appreciating the entire evidence, the learned trial Court convicted and sentenced the appellant, as already indicated above. 7. I have heard Mr. Dhirinder Chopra, learned counsel for the appellant and Mr. Ramandeep Sandhu, learned Deputy Advocate General, Punjab. With their assistance, I have gone through the entire evidence minutely. 8. The main attack launched by Mr. Chopra is that there is non-compliance of Section 50 of the Act and this flaw along is sufficient to reject the case of the prosecution in its entirety. Dwelling upon his arguments, the learned counsel contends that as per the case of the prosecution, the recovery of contraband is effected from the inner jacket underneath the shirt of the appellant, which amounts to personal search and as such the provisions of Section 50 of the Act come into play. Mr. Chopra in order to highlight the aforesaid non-compliance has drawn my attention to the ruqqa (Ex.PB), which is basis for registration of the First Information Report, after the recovery was effected. The said ruqqa is scribed by ASI Ashok Kumar, the Investigating Officer and it is mentioned therein, that the appellant was told by ASI Ashok Kumar, "I suspect that you are carrying opium or smack. I want to conduct your search. If you want to be searched in the presence of some gazetted officer, arrangement for the same can be done". But the appellant reposed his faith in ASI Ashok Kumar. According to the learned counsel in the said ruqqa, there is no reference to the Magistrate. However, when ASI Ashok Kumar stepped into the witness box (as PW-2) he made an improvement by saying that an offer was given to the accused that if he so desired, his personal search could be conducted before a gazetted officer of a Magistrate. From this, the learned counsel wants to develop that the Investigating Officer has intentionally made an improvement in the Court for the first time to show compliance of the provisions of Section 50, whereas it was not done before effecting search of person of the appellant. 9. In support of his contentions, Mr. From this, the learned counsel wants to develop that the Investigating Officer has intentionally made an improvement in the Court for the first time to show compliance of the provisions of Section 50, whereas it was not done before effecting search of person of the appellant. 9. In support of his contentions, Mr. Chopra places reliance upon a Full Bench decision rendered by the Honble Supreme Court in State of Himachal Pradesh v. Pawan Kumar, 2005(2) RCR(Crl.) 622 : 2005(2) Apex Criminal 1 : JT 2005(4) Supreme Court 373 and another judgment of Honble Apex Court in T.P. Razak alias Negappan Razak v. State of Kerala, 1995 Supplementary (4) Supreme Court Cases 256 (para 6 refers). 10. Mr. Chopra then states that there is another material infirmity in the case of the prosecution, which creates doubt about the very case set up by it. He has drawn my attention to the recovery memo. Exhibit PA and the carbon copy of the same Exhibit DA. He points out that on Exhibit PA, there are signatures of the Investigating Officer, whereas in the carbon copy Exhibit DA the same are missing. This shows that everything is done subsequently while sitting in the police station and nothing had happened at the spot. 11. Mr. Chopra next submits that there is non-compliance of Section 55 of the Act as well, which also causes prejudice to the case of the appellant coupled with the fact there is basic infirmity with regard to non-compliance of Section 50 of the Act. He states that ASI Ashok Kumar was not SHO of the concerned police station where the accused, the case property and the witnesses were taken. The case property was not shown to the SHO of the said police station with regard to compliance of Section 55 of the Act and it was straight away deposited with the Moharrir Head Constable. According to Mr. Chopra, as per provisions of Section 55 of the Act, it was the duty of the SHO to verify all the facts before keeping the case property in his safe custody for the purposes of producing before the Magistrate. In the instant case, the case property was not even produced before the Magistrate for obtaining appropriate orders and, therefore, this weakness also dents the case of the prosecution. 12. Mr. In the instant case, the case property was not even produced before the Magistrate for obtaining appropriate orders and, therefore, this weakness also dents the case of the prosecution. 12. Mr. Chopra then contends that there is delay in sending the sample to the Chemical Examiner for analysis. The recovery was effected on 17.5.1989, whereas the sample was sent to the Chemical Examiner on 6.6.1989. Thus, there is delay of about 20 days and there is no explanation from the side of the prosecution with regard to this delay. Dwelling upon his arguments, the learned counsel submits that the seal was handed over to Sher Singh PW, the independent witness, who was otherwise given up as having been won over. There is every possibility that the seal was taken back from aforesaid Sher Singh and, therefore, chances of tampering with the seal cannot be ruled out. 13. Mr. Chopra has also made an attempt to dislodge the case of the prosecution with regard to link evidence stating that the affidavits tendered by the police officials, who had handled the case property and the sample i.e. Ex. PD of MHC Maghar Singh and Ex. PE of Constable Harbans Singh are defective inasmuch as the verification part is not correct. 14. Mr. Chopra lastly contends that the appellant had come up with plausible evidence, which was supported by documentary evidence and as such he has been able to rebut the presumption of conscious possession qua him. 15. On the basis of the aforesaid submissions, Mr. Chopra submits that the case of the prosecution is not free from doubt and as such the impugned judgment recording conviction of the appellant deserves to be set-aside. 16. The learned State counsel, on the other hand, while repudiating the arguments advanced by learned counsel for the appellant submits that the case of the prosecution is proved to the hilt and there is no reason to disbelieve the police officials, who had no animosity against the appellant to falsely implicate him. He then contends that the infirmities as pointed out by the learned counsel for the appellant are not so material as to dislodge the case of the prosecution in its entirety. He then contends that the infirmities as pointed out by the learned counsel for the appellant are not so material as to dislodge the case of the prosecution in its entirety. However, while admitting the fact that in the instant case the provisions of Section 50 of the Act stand attracted, the learned State counsel contends that ASI Ashok Kumar when stepped into the witness box has categorically stated that the appellant was asked as to whether he wanted to be searched before a gazetted officer or a Magistrate and, therefore, the compliance of the said Section is complete in all respects. 17. The learned State counsel on the basis of the aforesaid submissions prays for confirming the judgment of conviction. 18. After giving my thoughtful considerations to the rival contentions of either side, I am of the considered view that the prosecution has not been able to prove its case against the appellant beyond any shadow of doubt. Although the instant appeal qua the substantive sentence stands abated, yet it deserves to be set-aside qua the sentence of fine. 19. The admitted position is that the provisions of Section 50 of the Act apply in this case as it was search of the person. The other admitted position is that if one reads the initial ruqqa (Ex.PB), it does not talk about the offer given to the appellant about being searched before a Magistrate. To that extent, it can be said to be partial offer and, therefore, it would amount to non-compliance of Section 50 of the Act. 20. ASI Ashok Kumar, however, very intelligently made an attempt to overcome this weakness when he stepped into the witness-box and deposed that the appellant was asked about his search to be conducted before a gazetted officer or a Magistrate. No doubt, in cross-examination he was not confronted with the ruqqa (Ex.PB) scribed by him, yet this fact alone would not prove the case of the prosecution with regard to compliance of Section 50. No doubt the ruqqa (Ex.PB) talks about adopting the entire procedure provided under the statute before effecting the recovery. Had the Investigating Officer asked the appellant about the offer of being searched before a Magistrate, he would not have missed to mention it in the initial ruqqa. No doubt the ruqqa (Ex.PB) talks about adopting the entire procedure provided under the statute before effecting the recovery. Had the Investigating Officer asked the appellant about the offer of being searched before a Magistrate, he would not have missed to mention it in the initial ruqqa. As such, any improvement made thereafter during trial by the Investigating Officer in this regard has to be rejected, despite the fact that he was not cross-examined by the learned defence counsel on this aspect. In T.P. Razaks case (supra), the Honble Apex Court under the similar circumstances observed that the complete offer was not mentioned in the First Information Report or in the seizure memo, but the witness deposed in the Court that the accused was given an offer with regard to the search being conducted before a gazetted officer or a Magistrate. May be in the aforesaid case the learned trial Court or the High Court had proceeded on the basis that the non-compliance of provisions of Section 50 was not fatal to the prosecution, but the fact remains that non-mentioning of the complete offer in the initial FIR was taken as a vital flaw in the case of the prosecution by the Honble Supreme Court. 21. On the basis of the aforesaid discussion, I can now safely conclude that there is non-compliance of Section 50 of the Act and the same being mandatory in nature is enough to discard the case of the prosecution. 22. I also find substance in the other submissions raised by learned counsel for the appellant with regard to non-compliance of the provisions of Section 55 of the Act, as the case property was not produced before the SHO as required under the law and the same was also not produced before the concerned Magistrate on the following day, which certainly causes prejudice to the case of the appellant. However, I do not feel the necessity of entering into detailed discussion with regard to the present flaw and on other lacunae and weaknesses in the prosecution case, as the impugned judgment of conviction deserves to be set-aside on the sole ground of non-compliance of the provisions of Section 50 of the Act, which are mandatory in nature. 23. However, I do not feel the necessity of entering into detailed discussion with regard to the present flaw and on other lacunae and weaknesses in the prosecution case, as the impugned judgment of conviction deserves to be set-aside on the sole ground of non-compliance of the provisions of Section 50 of the Act, which are mandatory in nature. 23. The net result is that the instant appeal stands allowed and the impugned judgment dated 15.5.1990 passed by the learned Sessions Judge, Sangrur, vide which the appellant (since dead) had been convicted, is hereby set-aside. He is acquitted of the charge. All concerned quarters be informed.