Punjab-Haryana High Court
Surjit Singh vs State Of Punjab on 18 November, 2010
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Criminal Appeal No.1377-SB of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Appeal No.1377-SB of 2001
Date of Decision: November 18, 2010
Surjit Singh .......Appellant
Versus
State of Punjab .......Respondent
CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr.SPS Sidhu, Advocate
for the appellant.
Mr.Rajinder Mathur, Assistant Advocate General, Punjab.
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JITENDRA CHAUHAN, J. (Oral)
1. This appeal is directed against judgment and order dated 30/31.10.2001 whereby the learned Special Judge, Ferozepur (hereinafter referred as the 'trial Court') convicted the appellant for the offence under Section 18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred as 'the Act') and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1 lac and in default thereof, to further undergo rigorous imprisonment for one year.
2. Brief facts of the prosecution case, as emanating from the Criminal Appeal No.1377-SB of 2001 -2- record, are that on 16.6.1999, in pursuance of the instructions received from Shri Narinder Pal Singh, SP(D), to hold nakas, five police parties were formed under the supervision of SI Gurbux Singh, Inspector Ram Singh, Inspector Gurbux Lal, SI Jagtar Singh and SHO Jaspal Singh. The party which was headed by SI Gurbux Singh, CIA Staff, Ferozepur, was holding a naka, along with other Police officials, on the bridge of twin canal in the area of Village Jattanwali where a small drain also adjoins the twin canals and a kacha path leads from Village Jattanwali to Village Chiragwala, Ferozepur. One Mukhtiar Singh son of Inder Singh was also joined with the Police party as independent witness. At that time, five persons including Surjit Singh, accused (herein appellant), were seen coming from the side of Village Chiragwala along the kacha path and three of them were carrying bags on their shoulders. On reaching the place of nakas, they were apprehended by different police parties. Accused-Surjit Singh, was apprehended by the Police party headed by SI Gurbux Singh, whereas the other accused were apprehended by other police parties. On suspicion of presence of some intoxicants in the bag which was being carried by the accused-Surjit Singh on his shoulders, SI Gurbux Singh, told the accused that his search had to be conducted and offered him whether he wanted to be searched in the presence of some Gazetted Officer or a Magistrate. He also revealed the identity of DSP Joginder Kumar, who was a Gazetted Officer and accompanying the police party, to the accused. The accused opted to be searched in the presence of DSP Joginder Kumar itself. Search memo was prepared and signed by the accused and attested by ASI Gurdip Singh, DSP Joginder Kumar and Mukhtiar Singh, independent witness. Thereafter, the search of the accused was conducted by SI Gurbux Singh in their presence Criminal Appeal No.1377-SB of 2001 -3- and as a result thereof, opium wrapped in glazed paper was recovered from underneath the kurta-pajama which was kept in the raxion bag being carried by the accused on his shoulders. On weighment, the contraband was found to be 1 Kg. Out of this quantity, 10 gms. of opium was separated to serve as sample and the residue weighing 990 gms. was put in a tin box. The sample and the residue were converted into separate parcels and sealed by SI Gurbux Singh with his seal 'GS'. DSP Joginder Kumar also put his seal bearing impression 'JK'. The seals after use were handed over to ASI Gurdip Singh and DSP Joginder Kumar. On personal search of the accused, currency notes of Rs.50/- were recovered and taken into possession. Rough site plan of the place of occurrence was prepared and the accused was formally arrested. Challan against the accused-appellant was prepared and presented in the Court.
3. Accused-appellant was charge-sheeted for the commission of offence punishable under Section 18 of the Act to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined as many as six witnesses, viz., ASI Jaspal Singh, SHO, Police Station, Mallanwala as PW1, Constable Kaurh Singh as PW2, LC Pipal Singh as PW3, DSP Joginder Kumar as PW4, SI Gurdip Singh as PW5 and Inspector Gurbux Singh, Investigating Officer of the case, as PW6.
5. PW1-ASI Jaspal Singh has stated that he kept the case property with him and on the next day i.e. on 17.6.1999, he produced the accused- appellant as well as case property before Judicial Magistrate Ist Class, Zira. PW2-Kaurh Singh stated that after completion of formalities, he deposited the sample, along with sample seal of this case with the office of Chemical Criminal Appeal No.1377-SB of 2001 -4- Examiner, Jalandhar on 22.6.1999 and handed over the receipt to the SHO. PW3- LC Pipal Singh delivered the special reports of this case to the higher authorities. PW4-DSP Joginder Kumar and PW6-Inspector Gurbux Singh, the Investigating Officers of the case have fully proved that when the police party was at the nakabandi on the bridge of twin canals in the area of village Jattanwali, accused-appellant Surjit Singh along with other persons was seen coming from the side of village Chiragwala. PW5-SI Gurdip Singh is the recovery witness of the entire case property.
6. Statement of the accused-appellant under Section 313 of the Code of Criminal Procedure was recorded in which he denied the entire incriminating material coming in the prosecution case against him. In his defence, the accused-appellant examined Kailash Chand, DRK of Judicial Record Room as DW1, Sukhdev Singh, Panchayat Secretary of village Jeonwala as DW2, Paramjit Singh, Sarpanch of village Jeonwala as DW3 and Gurpiar Singh as DW4.
7. Upon appreciation of evidence, the learned trial Court convicted and sentenced the accused-appellant as mentioned in the outset in para 1 of this judgment.
8. The present appeal was admitted by this Court on 29.11.2001 and the appellant was ordered to be released on bail vide order dated 10.1.2002.
9. Learned counsel for the appellant has submitted that the offer of being searched made to the appellant was not a complete offer. From the record, it is amply borne out that apart from the bag which the appellant was allegedly carrying on his shoulder, his personal search was also conducted and currency notes of Rs.50/- were recovered from his Criminal Appeal No.1377-SB of 2001 -5- possession. Therefore, the learned counsel has argued that the provisions of Section 50 of the Act have not been complied with.
10. He has further submitted that as the FIR number is reflected on all the documents, this itself makes the case of the prosecution not only doubtful but also goes to show that, at least, the facts of the case are not as have been projected by the prosecution and the memos and parcels were not prepared at the spot. Learned counsel has further argued that the raiding party was accompanied by one independent witness, namely, Mukhtiar Singh. After the recovery of the contraband, seal was neither handed over to him nor he was cited as a witness by the prosecution. Learned counsel has further submitted that the recovery was effected on 16.6.1999, whereas the samples were sent to the Chemical Examiner on 21.6.1999. Thus, there is delay of five days in sending the samples. The seal after use was not handed over to independent witness and it remained with police officials. Even CFSL Form was not prepared at the spot. In such like circumstances, the possibility of seal, contraband and the samples being tampered with cannot be ruled out. Reliance is placed on Bhola Singh v. State of Punjab, 2005(2) RCR (Crl.) 520, wherein it has been observed that:
"There is another circumstance creating doubt in the prosecution case. The prosecution has failed to prove the link evidence with regard to the seizure of the contraband till the same reached the office of the Chemical Examiner. PW3 SI Sukhwinder Singh, after sealing the sample parcels of the contraband as well as remaining contraband, handed over the seal to Surjit Singh, the independent eye witness, but said Surjit Singh has not been examined. It is well settled that till the case property had not been despatched to the Forensic Science Laboratory the seal should not be available to the prosecuting Criminal Appeal No.1377-SB of 2001 -6- agency and in the absence of such safeguard the possibility of seal, contraband and the sample being tampered with cannot be ruled out. SI Sukhwinder Singh in his examination-in-chief stated that Form No.29 was prepared on 29.9.1999 on which specimen of seal was affixed. The said form was supposed to be deposited along with the sample and the case property in the Malkhana, but it is not clear from the statements of SI Sukhwinder Singh or any other prosecution witnesses that the said form was deposited in the Malkhana on 29.9.1999 itself. In Emma Charlotte Eve v. Narcotic Control Bureau, 2000(4) RCR (Criminal) 386 & Shaiffulah v. State, 49(1993) DLT 193, it was held that "where the seals remained with the police after use and the CFSL form was neither prepared on the spot nor deposited in the Malkhana, such circumstance would be fatal to the prosecution case". Filling of such form at the spot is a very valuable safe-guard to ensure that the seal sample is not tampered with till its analysis by the FSL. The CFSL form should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused. It should also be sealed by the SHO to whom the sample and the case property is handed over and the same should accompany the sample to Chemical Examiner. The idea behind taking such a precaution is to complete the material link in the prosecution evidence by eliminating the possibility of the sample being tampered with. The prosecution has miserably failed to prove the link evidence."
11. Learned counsel for the appellant has further stated that Gurpiar Singh son of Bachitar Singh, DW4, who was also apprehended at the same time, sent a telegram alleging that his father has been taken away by the police from his house on 12.6.1999. The said telegram was treated as Criminal Writ Petition by this Court by passing an appropriate order. Learned counsel submits that the telegram which is prior to the date of Criminal Appeal No.1377-SB of 2001 -7- occurrence casts doubt on the version put forth by the prosecution.
12. Learned counsel for the appellant has lastly submitted that as per the case of the prosecution, the appellant, along with four other persons was dropped from the jeep. Although, this was witnessed by the raiding party, yet, for the reasons best known to the prosecution, no investigation was conducted by the Investigating Agency on this aspect of the case in order to go into the root of the matter so as to find out the origin of the crime.
13. On the other hand, learned counsel for the State submits that in the instant case, compliance of Section 50 of the Act was not required as it was not a case of personal search. No benefit can be extended to the appellant from the fact that the seals remained with the Investigating Officer itself. However, he has not been able to explain as to why no investigation was conducted regarding the vehicle i.e. jeep that carried the appellant to the spot.
14. I have heard learned counsel for the parties and perused the records with their assistance.
15. Admittedly, the recovery in the instant case was effected from the bag carried by the appellant. This is also proved from the record that the personal search of the appellant was conducted and recovery of currency notes was effected. When it is established that the personal search of the appellant was also conducted, the compliance of Section 50 of the Act becomes mandatory, therefore, I have no hesitation in holding that the provisions of Section 50 of the Act have not been complied with.
16. It has been observed by the Hon'ble Supreme Court in the case reported as Dilip and another v. State of M.P., 2007(1) RCR (Criminal) Criminal Appeal No.1377-SB of 2001 -8- 586 in paras 15 to 18, as under:
"This Court, therefore, clearly held as to what extent provisions of Sections 41 and 42 are mandatory and to what extent they would not be.
Indisputably, however, effect of a search carried out in violation of the provisions of law would have a bearing on the credibility of the evidence of the official witnesses, which would of course be considered on the facts and circumstances of each case.
In this case, 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 persons of the appellants were also searched, it was obligatory on the part of P.W.10 to comply with the said provisions. It was not done.
In State of Punjab v. Baldev Singh, 1999(3) RCR (Crl.) 533 (SC): (1999) 6 SCC 172), a Constitution Bench of this Court opined:
"....Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. Section 50 (4) of the of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females, Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.
The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 Criminal Appeal No.1377-SB of 2001 -9- whenever it is found necessary to cause a female to be searched. The document prepared by the investigating officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity."
17. It is also borne out from the record that FIR number is reflected on all the exhibits/documents sent to the Police Station. It is inconceivable as to how the FIR number came to be mentioned on these documents. This certainly indicates that either the FIR was registered prior to the alleged incident and subsequently, all the formalities were completed, or the FIR was registered with some oblique motive which is apparent from the telegram dated 12.6.1999 sent by Gurpiar Singh, DW4, to this Court.
18. In Bhola Singh v. State of Punjab, 2005(2) RCR (Crl.) 520, this Court has held that CFSL Form No.29 should be prepared by the Investigating Officer at the spot and be deposited in the Malkhana along with sealed contrabands. It has been further held that after sealing the sample parcel of the contraband as well as remaining contraband, the seal should be handed over to the independent person so that till the case property had been deposited to the Forensic Science Laboratory, the same should not be available to the prosecuting agency. This is necessary to safeguard the possibility of the sealed contraband and the sample being tampered with by the police official. It was further held that CFSL Form Criminal Appeal No.1377-SB of 2001 -10- should not only be prepared and sealed by the officer making seizure at the place where the case property is seized from the accused, it should also be sealed by the SHO, to whom the sample and the case property is handed over and deposited in the Malkhana along with the sample parcel. It should accompany the sample to Chemical Examiner. In another case, titled as Gurcharan Singh v. State of Punjab, 2005(4) RCR (Crl.) 681, the accused was acquitted on the grounds that the seal affixed on seized opium was given to the Head Constable and not an independent witness. The Seizing Officer failed to prepare CFSL Form on the spot, which creates a further doubt about the credibility of the entire prosecution exercise."
19. Admittedly, the sole independent witness- Mukhtiar Singh has not been cited as a witness. Moreover, there is no explanation whatsoever as to why the investigation with regard to the jeep from which the appellant was allegedly dropped and which was within the sight of police, has not been conducted. It has been observed in Union of India v. Shah Alam & another, 2009(3) RCR (Criminal),161 as under:
"On the facts of the case, we find that the alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act. Apart from this, the non-examination of the two independent witnesses of the search and recovery was another grave omission by the prosecution. It is significant to note here that a formal petition for discharge of the two witnesses was filed by the prosecution before the trial Court and it is not that they were simply not produced before the court."
20. From the cumulative reading of the facts and material on record, it is established that the prosecution has suppressed the genesis of the crime deliberately, by not investigating on the above point. Criminal Appeal No.1377-SB of 2001 -11-
21. Resultantly, the present appeal is allowed. The impugned judgment of conviction and order of sentence dated 30/31.10.2001 passed by the learned trial Court are hereby set aside. The appellant, who is stated to be on bail, is acquitted of the charge framed against him. His bail bonds shall stand discharged.
( JITENDRA CHAUHAN )
November 18, 2010 JUDGE
SRM
Note: Whether to be referred to reporter ? Yes/No