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2014 DIGILAW 293 (PNJ)

Darshna @ Moli v. State of Punjab

2014-02-06

M.M.S.BEDI

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Mr. M.M.S. Bedi, J.: (Oral) – Appellant Darshna @ Moli has preferred this appeal against the order of conviction dated 12.3.2003, passed by the Special Judge, Nawanshahar to undergo rigorous imprisonment for 18 months and to pay a fine of Rs.1000/- and in default of payment of fine to undergo further imprisonment for a period of one month. 2. Briefly stated, case of the prosecution is that a police party headed by ASI Lehmbar Singh was present on the Chandigarh Chowk, Nawanshahar and at about 6:45 PM a special informer informed that Darshna @ Moli widow of Telu Ram was sitting on the bridge selling poppy husk. Constable Sarwan Ram was sent to Police Station to arrange a lady constable and the other police party reached near Gurdwara Tahli Sahib where independent witness Manohar Lal was joined. Accused was found sitting on the right side of the bridge. A gunny bag was lying near her and when it was checked she stood up. ASI Lehmbar Singh disclosed his name to the accused. He asked if she wanted to have her search conducted from a Gazetted Officer or from a Magistrate. She reposed faith in the Investigating Officer. The Investigating Officer then apprised the SHO P.S.City, Nawanshahar on wireless. Around 7:30 PM, the DSP City Baldev Singh reached there in Government Gypsy accompanied by his gunman and disclosed his identity. He asked her if she wanted her search to be conducted from a Gazetted Officer. He further asked her if she wanted her search to be conducted from Magistrate. She stated that she has faith in the DSP. Her Statement EX.PA was recorded. Said writing was signed by her and attested by Constable Sarwan Ram PW.5. ASI Lehmbar Singh opened the gunny bag and found that it was containing poppy husk. He took 250 gms., of poppy husk by way of sample and converted it into a sample. The remaining contents of the bag on weighment were found to be 30 kgs. The Investigating Officer then sealed the said bag with seal of ‘BS’. Specimen of the seal was prepared. The seal was retained by DSP Balbir Singh. Arrest memo EX.PH was prepared. It was thumb marked by the appellant and attested by PW.5 Sarwan Ram and Manohar Lal. Ruqa was sent to Police Station through Constable Siri Ram. Case property was handed over to MHC. 3. Specimen of the seal was prepared. The seal was retained by DSP Balbir Singh. Arrest memo EX.PH was prepared. It was thumb marked by the appellant and attested by PW.5 Sarwan Ram and Manohar Lal. Ruqa was sent to Police Station through Constable Siri Ram. Case property was handed over to MHC. 3. After completion of investigation, the challan was presented. The appellant was charged under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to which she pleaded not guilty and claimed trial. 4. In order to substantiate the charge against the appellant, the prosecution agency examined the following witnesses:- PW.1 Constable Jaswinder Singh to prove special report sent to the Duty Magistrate; PW.2 ASI Lehmbar Singh, recovery witness; PW.3 MHC Paramjit Singh who had deposited gunny bag of poppy husk and sample packet weighing 250 gms. with specimen seal; PW.4 Constable Harjinder Singh who was entrusted with sample packet on 4.7.2001 i.e., after a gap of 40 days of the recovery; PW.5 Constable Sarwan Ram, a witness to the recovery; PW.6 DSP Balbir Singh, a Gazetted Officer in whose presence the recovery was effected; and PW.7 SI Baldev Singh before whom the case property was produced. 5. After examination of the prosecution witnesses, all the incriminating material available against the appellant on record was put to the appellant to which she claimed that nothing was recovered from her and that ASI Lehmbar Singh had a quarrel with her prior to the recovery and as such, in order to settle his score, he falsely involved her in the criminal case. 6. The trial Court after considering the material on record convicted the appellant as aforementioned. 7. Counsel for the appellant has submitted that the appellant deserves to be granted the benefit of doubt as the prosecution has failed to prove charge of recovery of poppy husk from the appellant beyond shadow of doubt. He has pointed out mandatory provisions of law having been violated and that the procedure under the Narcotic Drugs and Psychotropic Substances Act, 1985 for recovery and sampling has not been proved beyond shadow of doubt. 8. He has pointed out mandatory provisions of law having been violated and that the procedure under the Narcotic Drugs and Psychotropic Substances Act, 1985 for recovery and sampling has not been proved beyond shadow of doubt. 8. I have considered the contentions of the learned Counsel for the appellant and I am of the opinion that the appellant deserves to be acquitted granting her benefit of doubt for the following reasons:- (1) Section 50 (4) the Narcotic Drugs and Psychotropic Substances Act, 1985 requires that in case the accused is a lady she cannot be searched by anyone except a female. No doubt a police official had been sent to bring a lady constable from Police Station but neither recovery was effected in her presence nor she has been examined to prove that the search was conducted by a female. The provisions of Sections 50 (4) the Narcotic Drugs and Psychotropic Substances Act, 1985 are mandatory. Non production of said lady constable and no document having been signed by the lady police official clearly indicates that provisions of Section 50 (4) the Narcotic Drugs and Psychotropic Substances Act, 1985 have been violated; (2) The seal after use was retained by the DSP Balbir Singh as deposed by him while appearing as a witness as PW.6. As the seal of the DSP had been retained by him a serious doubt is created regarding the recovery having been effected from the spot as alleged by the prosecution. Besides this another circumstance that sample taken on 24.6.2001 had been sent for analyses on 4.7.2001 is indicative of the fact that the prosecution has not proved that the sample was not tampered with or the documents recovered were not prepared in the Police Station. Delay of 40 days in sending sample is suggestive of recovery having not been effected and the sample having been tampered with. In this context, a reference can be made to judgment in case Gian Singh Vs. State of Punjab, [2006(2) Law Herald (P&H) 1006] : 2006 (3) Criminal Court Cases, 480 (P&H), State of Rajasthan Vs. Gurmail Singh, 2005 (1) Apex Court Judgments, 468 (SC) and Ramji Singh Vs .State of Haryana, 2007 (3) Criminal Court Cases 955 (P&H). In case Gian Singh (supra) there was a delay of 10 days in sending sample to the office of chemical examiner. Gurmail Singh, 2005 (1) Apex Court Judgments, 468 (SC) and Ramji Singh Vs .State of Haryana, 2007 (3) Criminal Court Cases 955 (P&H). In case Gian Singh (supra) there was a delay of 10 days in sending sample to the office of chemical examiner. In case Gurmail Singh (supra) the contraband remained in Malkhana for 15 days. In case Ram Singh (supra) the sample was sent to the office of chemical examiner after 72 hours and the seal remained with police officials. In all the cases, the delay in sending the sample to chemical examiner at a belated stage was held to vitiate the case of prosecution. Following the ratio of above said judgments, the petitioner deserves to be granted benefit of doubt. (3) Another important fact in the present case is that the case was registered on the basis of secret information but the said information having been recorded or sent to higher authorities has not been established. None of the witnesses has stated that the information was recorded. There is clear violation of Section 42(2) the Narcotic Drugs and Psychotropic Substances Act, 1985, as the provision require to take down said information in writing and record ground for his plea as per Section 41 (1) and (2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and to send within 72 hours copy thereof to his immediate official superior. In P. Kumar Vs. Namaju Baddi 2010 (4) RCR (Crl.) 367, Hon’ble the Apex Court had held that compliance of Section 42 (2) the Narcotic Drugs and Psychotropic Substances Act, 1985, is mandatory. In above said case, it was held that when information in writing is not conveyed to the immediate senior police official, the accused was entitled to acquittal. 9. In view of above, order of conviction qua the appellant is hereby set aside by giving her benefit of doubt. Conviction is set aside. Sentence of imprisonment and fine is also set aside.