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2023 DIGILAW 1616 (PNJ)

Sony v. State of Punjab

2023-05-04

HARKESH MANUJA

body2023
Judgment Mr. Harkesh Manuja, J. The present appeal has been filed against the judgment of conviction and order of sentence dated 16/19.12.2016 passed by Judge, Special Court, Patiala vide which the appellant has been sentenced for 2 years R. I. with fine of Rs. 20,000/- and 2 months S.I. in default of payment of fine under section 22 of NDPS Act. 2. The allegations in brief as stated in the FIR are that on 17.12.2013, when ASI Janak Raj alongwith other police officials was present at Theri, near State Bank of Patiala, in connection with patrolling duty and checking of suspected persons, he received a secret information to the effect that two persons, namely, Suraj son of Paramjit Singh and Sony son of Pritam Singh who were in the habit of selling intoxicant tablets and capsules were coming from Ambala side towards Village Theri and if they were apprehended, a large quantity of intoxicant tablets can be recovered from them. Considering the aforesaid secret information to be reliable, ASI Janak Raj with the help of other police officials, laid a nakka at T-Point in the revenue limits of village Dheelwal and after some time, two persons were seen coming from the side of Village Dheelwal, who on seeing the police party tried to escape from there, but were apprehended on suspicion and on inquiry, they disclosed their names as Suraj son of Paramjit Singh and Sony son of Pritam Singh, residents of Village Theri. Thereafter, ASI Janak Raj after disclosing his identity to the accused told that he has a doubt that the accused may be having some narcotic substance in their possession and they have to be searched for that purpose and before that the accused have a right to get themselves searched, either in the presence of some Gazetted Officer or a Magistrate, who can be called at the spot. Both the accused reposed confidence upon ASI Janak Raj and recorded their separate consent statements and thereafter, ASI Janak Raj conducted the search of the accused Suraj and one polythene Lifafa containing MAIDOTIL intoxicant tablets were recovered from right pocket of the trouser worn by him. Thereafter, ASI Janak Raj separated two samples of 10 tablets each and put the same into plastic boxes. Thereafter, ASI Janak Raj separated two samples of 10 tablets each and put the same into plastic boxes. On counting, the remaining tablets the same were found to be 480 and he put the same into a plastic container and converted all the aforesaid plastic containers into parcels. Further, ASI Janak Raj conducted the search of the accused Sony and one polythene Lifafa containing intoxicant tablets was recovered from right pocket of the Jacket worn by him. Thereafter, ASI Janak Raj separated two samples of 10 tablets each and put the same into plastic boxes. On counting, the remaining tablets were found to be 480 tablets and he put the same into a plastic container and converted all the aforesaid plastic containers into parcels and affixed his seal bearing impression ‘JR’ on the said parcels. Specimen seals were prepared and ASI Janak Raj handed over the same to HC Vikranjit Singh and the incriminating articles were taken into possession, vide a recovery memo. Thereafter, a formal FIR was registered on the basis of ruqa sent through C. Charanjit Kumar. The samples were sent to the office of the Chemical Examiner. As per the report, contents of the sample were found to be Diphenoxylate Hydrochloride. After completion of investigation, challan against the accused was presented in the court. 3. Accordingly appellant was subjected to Trial and Ld. Special Court, Patiala primarily relying upon the statement of PW2 - ASI Janak Raj No.2834, Patiala, PS Sadar and PW4 - HC Vikramjit Singh No. 1621, Patiala, PS, Urban Estate, Patiala, vide judgment dated 16/19.12.2016, convicted him under Section 22 of the NDPS Act and ordered to undergo sentence for 02 years R. I. along with fine of Rs.20,000/- and in default of payment of fine to further undergo SI for 02 months. 4. By way of present appeal, challenge has been laid to the aforementioned judgment of conviction and order of sentence. 5. Learned counsel for the appellant contends that there is noncompliance of Section 50 of NDPS as at the time of conducting search of the appellant; as neither the same was conducted by a Gazetted Officer; nor by a Magistrate, as per the view expressed by Hon’ble Apex Court in “Arif Khan @ Agha Khan v. State of Uttrakhand, 2018 (2) RCR (Criminal) 931” and “Vijaysinh Chandubha Jadeja v. State of Gujarat, 2010 (4) RCR (Criminal) 911. She also draws attention of the Court towards the statements made by the witnesses to show that there are many discrepancies in the statements of the prosecution witnesses; but the ld. Trial Court has not taken into consideration those which go to the root of the case specifically considering the circumstances that no independent witness was joined. Concluding her arguments, she prays that the appellant should be acquitted in this case as the prosecution failed to prove its case beyond the shadow of reasonable doubt. 6. Per contra, Learned State counsel submits that consent of appellant was recorded vide consent memo which is duly on record and therefore, it cannot be said that there was non-compliance of Section 50 of the NDPS Act. He further submits that minor contradiction here or there cannot be given undue importance so as to acquit the appellant and even learned Trial Court has noted that there is no material contradiction. Finally, he concludes his argument by submitting that learned Trial Court has rightly convicted the appellant under Section 22 of NDPS Act. 7. I have heard learned counsel for the parties and gone through the paper-book as well as records of the case. Learned State counsel has tried to justify that Section 50 of the NDPS Act has been duly complied with, as offer was made to the accused to be searched either by a Magistrate or a Gazetted Officer, but the appellant reposed complete faith in the present police officials and therefore, search was conducted by ASI Janak Raj. On the contrary, it is the admitted case of the parties that neither the accused was taken before any Gazetted Officer or a Magistrate; nor any of the police officials present at the time of alleged recovery. Therefore, in view of Arif Khan’s case (Supra) this argument of learned State counsel regarding compliance of Section 50 of the Act cannot be sustained whereby Hon’ble Apex Court has observed that:- “27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband “Charas” does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons. 28. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband “Charas” does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons. 28. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “Charas” was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband “Charas” from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “Charas” as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer. 29. Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer. 30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the noncompliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.” 8. Since the noncompliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.” 8. Above said case of Arif Khan has been followed by Division Bench of this Court in catena of judgments including “State of Haryana v. Jagdish” : Law Finder Doc Id # 2024864 bearing no CRM-A-160- of 2021 decided on 12.07.2022 and “State of Punjab v. Jatinderpal Singh @ JP” : Law Finder Doc Id # 2048144 bearing no CRM-A-382 of 2020 decided on 29.08.2022. 9. Additionally, at times there has been material contradictions in the statement of witnesses. Learned Special Court has primarily relied upon the testimony of PW1- HC Vikramjit Singh No. 1621,Patiala, PS, Urban Estate, Patiala and PW2 - ASI Janak Raj No.2834, Patiala, PS Sadar, while convicting the appellant. In that context, it would be appropriate to look at the relevant part of their cross-examination regarding how did they depart from the Police Station for patrolling. While PW1- HC Vikramjit Singh states that— “…… We started from the police station at about 4.p.m and entry in this regard was made in DDR register but I cannot tell the number of DDR. We were four police official and were on private vehicle but I cannot tell the number of the vehicle nor I can tell its registered owner but it was private car make Alto white colour belonging to ASI Janak Raj. I do not know whether registration number of the car was mentioned in the DDR while our departure from the police station. Car was driven by ASI Janak Raj…..” On the other hand, statement of PW2 - ASI Janak Raj is completely contradictory as he says that : “……We started from the police station at about 4 p.m and entry in the DDR register was made but I cannot tell the number of DDR. We were four police officials and were on two motor cycles. One motor cycle belongs to me i.e. make Hero Honda, No.PB-11S-6456 but Cannot tell the number of other motor cycle and the said motor cycle belongs to Bikramjit Singh. We were four police officials and were on two motor cycles. One motor cycle belongs to me i.e. make Hero Honda, No.PB-11S-6456 but Cannot tell the number of other motor cycle and the said motor cycle belongs to Bikramjit Singh. I have mentioned in the DDR that we are going on private vehicle but I have not specifically mentioned that we are going on motor cycle. I was driving the motor cycle whereas the other motor cycle was given by Bikramjit Singh. I do not remember who was sitting in the pillion of Bikramjit Singh. I do not remember who was sitting with me……” 10. Further, PW2 - ASI Janak Raj in his examination-in-chief states that consent Memos PA & PB were prepared by him only, but during cross-examination he said that he does not know who scribed the consent memo. This aspect gets further aggravated by the surrounding circumstance that no independent witness was joined by the police party during search though recovery was made during a naka in evening and admittedly it was a thoroughfare. Even the existence of shops/markets around the naka were admitted and in that circumstance merely saying that no person got ready to become a witness, does not inspire confidence. Further, no other details of any such person like name/address/contact info has been specified who refused to join in the investigation to become a witness so that the court could independently verify, this further makes the story of the prosecution doubtful. 11. A Division Bench of Himachal Pradesh High Court in “Karam Singh vs State Of Himachal Pradesh” bearing CR. Appeal No. 305 of 2011 decided on 07.08.2019, relying upon “Zahira Habibulla H. Sheikh v. State of Gujarat”, reported as 2004 (4) SCC 158 , held that: “…On the facts of each case, if the explanation of the police officials that independent witnesses could not be associated does not inspire confidence, then, coupled with other contradictions, it would lead to the inference that the prosecution did not come up with clean hands…..” 12. Though, it is well settled law that the testimony of a witness is not to be doubted or looked up with suspicion merely because he happens to be a Police official, but at the same time, a very well recognised rule of caution, adopted by the Courts to look for corroboration to the testimony of such witnesses by independent witnesses, particularly, when the time, place and circumstances, are such that independent witnesses are easily available need to be adopted. 13. In view of the discussion made above and on the basis of conjoint consideration of all the aspects, in my considered opinion, prosecution has failed to prove its case beyond reasonable doubts, therefore, the present appeal is allowed and the appellant is acquitted of the charges in the present case. 14. Pending miscellaneous application(s), if any, shall also stand disposed of.