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2007 DIGILAW 2034 (PNJ)

State Of Punjab v. Surjit Singh

2007-11-21

HARBANS LAL, MEHTAB S.GILL

body2007
Judgment Harbans Lal, J. 1. This appeal is directed against the judgment dated 30.11.1998 rendered by the Court of learned Special Judge, Patiala whereby he acquitted the accused of the charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act). Feeling aggrieved with the same, the State has come up in appeal. 2. The facts in brief of the prosecution case are that on 20th August, 1997, a police party headed by Inspector Rachhpal Singh, Incharge C.I.A. Staff, Patiala happened to be present at the bus-stand of Village Rajgarh on the Patiala-Sangrur road in connection with checking of suspects and bad characters. He received secret information to the effect that the accused indulged in trafficking in opium and that he would be transporting opium from Samana to Patiala in white Maruti car bearing registration No. PB-10F-9002. This information was embodied in ruqa Ex.PM, which was sent to the Police Station Sadar, Patiala where on its basis formal F.I.R. was recorded. Soon thereafter, the abovementioned Inspector sent a message through wireless set to Narjinder Singh PW7. The police party then proceeded to that point on the Patiala-Samana road from which a road forks off to village Bhanra for setting up a Naka. When they were on their way, Resham Singh a public man met the Inspector/Investigating Officer. He was co-opted. The police party reached the T.Point at which Narjinder Singh DSP came. Around 6.10 P.M. the aforesaid car came from Samana side being driven by the accused. There was no other occupant in the car. The same was stopped. On inquiry, the accused disclosed his name and address. The Inspector told the accused that he suspected that there was opium in the car and that he intended to search the same. He was also asked to tell whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. He offered to be searched in the presence of a Gazetted Officer. The Inspector told the accused that Narjinder Singh DSP,who was present at the spot was a Gazetted Officer. Thereafter, the accused showed his willingness to be searched in the presence of said DSP. The consent statement of the accused Ex.PG was recorded. It was thumb marked by the accused and attested by aforesaid Resham Singh and others. The Inspector told the accused that Narjinder Singh DSP,who was present at the spot was a Gazetted Officer. Thereafter, the accused showed his willingness to be searched in the presence of said DSP. The consent statement of the accused Ex.PG was recorded. It was thumb marked by the accused and attested by aforesaid Resham Singh and others. On search of the car, a plastic bag containing 4 kgs. and 20 grams of opium duly wrapped in a glazed paper was recovered from beneath the drivers seat of the car. Two samples of 10 grams each, out of the bulk were drawn. The same were converted into a sealed parcel. The remaining opium was also turned into a sealed parcel and were seized vide Ex.PH alongwith specimen seal impressions. The seals after use were handed over to Resham Singh. The car alongwith its papers was taken into possession vide Ex.PJ. From further personal search of the accused, currency notes worth Rs. 320/- were recovered, which were also seized vide memo Ex.PK, thumb marked by the accused and attested by the witnesses. The grounds of arrest Ex.PL were supplied to the accused by the Investigator, who prepared the rough site plan Ex.PN showing the place of recovery. On the next day, the sealed parcels and the specimen seal impressions were produced by ASI Dharam Dev before the learned Ilaqa Magistrate vide application Ex.PQ, on which the learned Magistrate passed order Ex.PQ/1 after seeing and initialing the case property. The Chemical Examiner vide his report Ex.PO gave the opinion that the contents of the samples were found to be of opium. After completion of the investigation, challan was laid in the Court. 3. The accused was charged under Section 18 of the Act, to which he did not plead guilty and claimed trial. 4. In order to substantiate its allegations, the prosecution examined nine witnesses. On close of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. He denied all the allegations appearing in the prosecution evidence against him. He has come up with a plea that Station House Officer, Police Station Sadar, Patiala was interfering in the land dispute between him and the residents of his village. He (accused) filed a complaint against the SHO to the Director General of Police and others. He has come up with a plea that Station House Officer, Police Station Sadar, Patiala was interfering in the land dispute between him and the residents of his village. He (accused) filed a complaint against the SHO to the Director General of Police and others. He (accused) was detained in Police Station Sadar, Patiala since 16th August, 1995 and was falsely implicated in this case at the instance of the aforesaid SHO and that he has no connection with the car in question. After having examined DW Dev Nath of his village, he closed his defence evidence. 5. After hearing the learned Additional Public Prosecutor for the State, learned defence counsel and examining the evidence on the record, the learned trial Court acquitted the accused of charge. 6. We have heard the learned counsel for the parties and gone through the evidence on record with due care and circumspection. 7. Mr. Uttam Singh Dhaliwal, Additional Advocate General, Punjab has maintained with great vigour and eloquence that as follows from the judgment under appeal, the learned trial Court has held that the provisions of Section 50 of the Act have been violated. This view of the learned trial Court is erroneous for the reason that the recovery was effected from the vehicle and not from personal search of the accused and on plain reading of Section 50 ibid, it follows that the provisions of this section are to be invoked when the recovery is to be effected from a person of the accused. 8. Per contra, Mr. A.K. Walia, Advocate representing the respondent/accused submitted that as per law, if the person of the accused is to be searched, these provisions are to be adhered to. We have given a deep and thoughtful consideration to the rival submissions. The most crucial point calling for determination herein is as to whether or not the provisions of Section 50 ibid were required to be complied with herein. 9. In re : Dilip and another v. State of M.P., 2007(1) RCR(Criminal) 586 : 2007(1) RAJ 235 : (2007)1 Supreme Court Cases 450; on search of the scooter, six big plastic bags and one small plastic bag were seen, which were said to be containing opium. Their Lordship of the Apex Court were pleased to observe as under : "It is now well settled that the offence committed under the Act is a grave one. Their Lordship of the Apex Court were pleased to observe as under : "It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided therefor in terms of Sections 41, 42 and 50 of the NDPS Act should be complied with. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with. The provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellant was also searched, it was obligatory to comply with the said provisions. It was not done." 10. It is abundantly clear from the above observations that in case of recovery from a vehicle, if the person of the accused is also searched, the investigator is obliged to observe the provisions of Section 50 ibid. In the present case, the English rendering of the consent memo of the accused Ex.PG is in the following terms : "In the presence of the below noted witnesses accused Surjit Singh expressed his consent before Sh. Narjinder Singh, DSP(R) that he wanted to give his search and the search of his car in the presence of the latter. Accordingly his consent statement has been recorded. The accused thumb marked the consent statement and the witnesses attested it, which was further attested by the DSP(R)." 11. Obviously, this document is quite cryptic that the accused was made aware of his right to be searched before a Gazetted Officer or a Magistrate. Doubtless that the alleged recovery was effected from the vehicle but the moment, the accused was asked to give his personal search, the investigator in view of the observations rendered in re : Dilip and another (supra) was obligated to make the accused aware of his right to be searched in the presence of a Gazetted Officer or a Magistrate. Palpably the language of Ex.PG spells out that the investigator had given a go by to the mandatory provisions of the Section under discussion. It can be aptly stated that the accused was robbed off his valuable right. Mr. Palpably the language of Ex.PG spells out that the investigator had given a go by to the mandatory provisions of the Section under discussion. It can be aptly stated that the accused was robbed off his valuable right. Mr. Dhaliwal has submitted that the provisions of Section 50 ibid are not attractable to the facts of this case. The argument is in teeth with the grounds of appeal, wherein it has been pleaded with specificity that as per the statutory and mandatory provisions of Section 50 ibid, a due offer was given to the accused to tell whether he wants to be searched before a Gazetted Officer or a Magistrate and he opted to be searched before a Gazetted Officer and accordingly, DSP, who was present at the spot, effected the search. If, according to him, the provisions under discussion were inapplicable to the facts of the instant case, we are at loss to understand as to why the accused was given offer in the afove-referred terms. To crown it all, the provisions of Section 50 ibid were required to be complied with when the accused was asked to give a search in view of the ratio decidendi laid down in re : Dilip and anothers case (supra). The investigator has flagrantly violated the same. 12. It is the prosecution case that the recovery was effected in the presence of Narjinder Singh DSP. Was he really in attendance at the spot when the alleged recovery was effected ? There is no denying the fact that the statement Ex.DD/1 under Section 161 Cr.P.C. of this witness was recorded on 15.11.1997 whereas the recovery was effected on 20.8.1997. Thus, obviously, his statement came to be recorded after about 3 months. The explanation furnished by this witness is that his statement could not be recorded at the spot on account of his having been called by the Senior Superintendent of Police. Queerly enough, that his statement was recorded after the passage of about 3 months. It is not the prosecution case that shortly after recovery, this witness went abroad. If he was called by the SSP his statement could have been recorded within 2-3 days. Queerly enough, that his statement was recorded after the passage of about 3 months. It is not the prosecution case that shortly after recovery, this witness went abroad. If he was called by the SSP his statement could have been recorded within 2-3 days. The long drawn delay in recording his statement gives an inkling that in fact he was not present at the time of recovery and it is because of this reason that his statement could to be recorded at the spot. The explanation furnished by this witness in this case seems to be an after thought. 13. In re : Jarnail Singh v. State of Rajasthan, 1972 Criminal Law Journal 824, the statement of a prosecution witness, who was examined by the police under Section 161 Cr.P.C. on the 4th day of the occurrence was disbelieved on account of the aforesaid delay. On the same analogy, statement of this witness is liable to be excluded from consideration. 14. Mr. Dhaliwal further canvassed at the bar that Resham Singh independent witness in this case had to be given up by the prosecution, as he was won over by the accused and that it is a settled law that prosecution evidence could not be disbelieved if it is merely uncorroborated by an independent witness as the evidence of official witnesses is as good as all public men. There is little force in this contention. It is apt to be borne in mind that as per the prosecution version the seals bearing letters RS and NS with which the case property was sealed were handed over to this witness Resham Singh. 15. In re : Satnam Singh v. State of Punjab, 1996(3) Recent Criminal Reports (Crl.) 369 (P&H) also relied upon by the learned trial Court. It has been held that "when the prosecution alleges that a material witness has been won over by the accused, it is still necessary that such witness must be produced and examined at the trial to reveal the truth, especially when the seal is allegedly entrusted to him after use". Had this witness Resham Singh been tendered for cross-examination, it could have been elicited as to after how many days the seal was returned by him There could be every possibility that the sample was tampered with by getting back the seals from this witness. Had this witness Resham Singh been tendered for cross-examination, it could have been elicited as to after how many days the seal was returned by him There could be every possibility that the sample was tampered with by getting back the seals from this witness. This possibility assumes greater importance as admittedly, sample in this case was despatched to the Chemical Examiner after 14 days as the recovery allegedly took place on 20.8.1997 and the sample was despatched to the Chemical Examiner on 3.9.1997. 16-17 In re : Narain v. State of Haryana, 1997(1) Recent Criminal Reports (Crl.) 414 (P&H), the sample was taken on 17.7.1992 but the same was sent to the Chemical Examiner on 28.7.1992. The delay of 10 days was not explained. The same was held to cause a dent in the prosecution story. In re : Kuba Ram @ Khuba v. Sate of Haryana, 1995(3) Recent Criminal Reports (Crl.), 316 (P&H), the unexplained delay of 15 days in sending the sample to the laboratory was found to be fatal to the prosecution case. In the present case, the prosecution has not furnished any explanation for withholding the sample for a period of about two weeks. This is causative of dent in the prosecution case. 18. To add further to it, ASI Dharam Dev PW9 has testified in his examination-in-chief that he had produced two sample parts before the learned Illaqa Magistrate though, under the stress of cross-examination, he admitted that as per the application Ex.PQ only one sealed sample part of 10 grams was produced before the learned Illaqa Magistrate. The sample part produced in the Court is Ex.P2 which bears the initials of the Illaqa Magistrate. A reasonable inference which can be drawn under the circumstances is that the sample part which was initialed by the Illaqa Magistrate has been withheld. This flaw further raises the dimensions of doubt in this case. 19. There is nothing on the record to show that after seizure and arrest, the Investigating Officer had sent information to his immediate superior official in compliance with the provisions of Section 57 ibid. 20. In re : Sham Lal v. State, 1997(2) Criminal Court Judgments 640, in a similar situation, the accused was acquitted by giving him benefit of doubt. 21. 20. In re : Sham Lal v. State, 1997(2) Criminal Court Judgments 640, in a similar situation, the accused was acquitted by giving him benefit of doubt. 21. As stems from the prosecution evidence, the secret information was received by the Investigating Officer to the effect that the accused would be transporting opium from Samana to Patiala in white Maruti car bearing registration No. PB-10F-9002 and on the basis of this information, the ruqa Ex.PM was sent to the Police Station, where on its basis, the formal F.I.R. Ex.PM/1 was registered. If it was so, it was imperative upon the investigator to send the writing of secret information to his immediate superior official in compliance with the provisions of Section 42(2) of the Act. The record speaks that no such writing was sent to the concerned officials. 22. In re : State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 736 : (1994)3 Supreme Court Cases 299, the Apex Court has observed that "under Section 42(2) of the Act, such empowered officer who takes down any information in writing or records the grounds under the proviso to Section 42(1) of the Act should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance with these provisions, the same affects the prosecution case. To that extent it is mandatory." 23. It is manifestly clear from these observations that this provision is mandatory and its non-compliance is fatal to the prosecution case. 24. For the reasons enumerated hereinbefore, it is found that the impugned judgment does not suffer from any infirmity or illegality. Consequently, the acquittal recorded by the learned trial Court warrants no interference. Hence, this appeal being meritless is dismissed.