Punjab-Haryana High Court
Angrej Kaur vs The State Of Haryana on 1 October, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRA No.S-939-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRA No.S-939-SB of 2000
Date of Decision: October 01, 2012
Angrej Kaur
... Appellant
Versus
The State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: Mr. Rahul Vats, Advocate,
for the appellant.
Mr. Deepak Girotra, AAG, Haryana.
Paramjeet Singh, J.
Present criminal appeal has been preferred by the appellant - Angrej Kaur, who was named as an accused in case FIR No. 98 dated 08.03.1999, registered at Police Station City Fatehabad, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act"). The learned Trial Court vide the impugned judgment dated 12.08.2000 found the appellant guilty of offence under Section 15 of "the Act" and vide order dated 14.08.2000, sentenced her to undergo rigorous imprisonment for a period of ten years and to pay a fine CRA No.S-939-SB of 2000 2 of Rs.one lac, in default whereof, she was to undergo further RI for one year.
Brief facts of the case are that on 08.03.1999, Inspector Shri Bhagwan, SHO, Police Station City Fatehabad was present at Fatehabad Bus stand with ASI Maya Ram, HC Khyali Ram and Constable Randhir Singh in connection with patrolling. He noticed one Bachan Kaur and Angrej Kaur accused coming from the side of bus stand. On seeing the police party, the accused retraced their steps. On suspicion, both the accused were apprehended by Inspector Shri Bhagwan. Since he suspected some narcotic drug in the pocket of jacket of Angrej Kaur, a notice (Ex.PC) was served upon her informing her that she was suspected to be carrying some narcotic drug in the pocket of her jacket and her search was required to be carried out. He also asked the accused whether she wanted to be got searched in the presence of a Gazetted Officer or a Magistrate. The accused gave reply to the notice that her search be carried out before a Gazetted Officer. Thereafter, Inspector Shri Bhagwan sent Constable Randhir Singh for bringing DSP Sultan Singh. On arrival of Sh. Sultan Singh, DSP City Fatehabad at the spot, jacket worn by Angrej Kaur- accused was taken by Inspector Shri Bhagwan in his possession and searched which led to recovery of 6 kgs. 500 grams of poppy straw. 100 grams poppy straw was separated as sample. On weighment remaining poppy straw recovered from the pocket of the jacket worn by the accused was found to be weighing 6 kgs 400 grams including the weight of the jacket. The poppy straw taken out for sample and remaining poppy straw CRA No.S-939-SB of 2000 3 was converted into two separate parcels which were sealed with the seal of SS by Inspector Shri Bhagwan. The impressions of seal for specimen were also prepared and seal was returned to DSP Sultan Singh by Inspector Shri Bhagwan. The parcels containing poppy straw including the jacket were taken by Inspector Shri Bhagwan in his possession. Information in writing (Ex.PA) was sent to the police station on the basis of which formal FIR (Ex.PB) was registered by SI Ramesh Kumar. Inspector Shri Bhagwan prepared site plan. Thereafter, he deposited the sealed parcel containing 100 grams poppy straw to the Director, Forensic Science Laboratory, Haryana, Madhuban on the same day. The Chemical examiner reported that the sample was poppy straw. After completion of the investigation, challan was presented in Court. Finding a prima facie case against the accused, she was charge-sheeted to which she pleaded not guilty and claimed trial.
The prosecution, in order to prove its case, examined seven witnesses i.e. PW1 SI Ram Narain, PW2 SI Ramesh Kumar, PW3 Constable Sher Singh, PW4 ASI Maya Ram, PW5 DSP SultanSingh, PW6 HC Om Parkash and PW7 Inspector Shri Bhagwan and closed its evidence.
Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to her. She denied the same and pleaded false implication. However, in her defence, she has not examined any witness.
The learned Trial Court, after trial, convicted and sentenced the accused appellant as aforesaid. Hence, this criminal appeal. CRA No.S-939-SB of 2000 4
I have heard learned counsel for the appellant, as well, as the learned State counsel.
Learned counsel for the appellant vehemently contended that there is no compliance of the provisions of Section 50(4) of the NDPS Act. The appellant was not searched by a female police official. The compliance of Section 50(4) of the Act is mandatory before effecting recovery. Learned counsel for the appellant further contended that no independent witness was joined at the time of search, although 6 kgs. 500 grams of poppy straw is stated to have been recovered from the pocket of jacket worn by the accused-appellant at Bus stand of Fatehabad which is a busy place and so many independent witnesses could have been joined. Learned counsel for the appellant further contended that the prosecution has failed to prove the conscious possession of the appellant and submitted that the link evidence is missing. There are number of contradictions and discrepancies in the statements of police witnesses.
Learned State counsel has opposed the contentions raised by the learned counsel for the appellant and submitted that recovery has been effected from the pocket of jacket which was worn by the accused. The appellant was apprehended at the spot. As such, the possession of the appellant is conscious and she was fully aware of this fact. Learned State counsel further contended that non-joining of independent witness cannot be a ground for acquittal.
I have considered the rival contentions of the learned counsel for the parties and perused the evidence on record.
CRA No.S-939-SB of 2000 5
After going through the record, I am of the considered opinion that the prosecution has not been able to prove the charge against the appellant beyond a reasonable doubt. There is a glaring procedural defect in the investigation of this case as the mandatory provisions of Section 50 of the Act have not been complied with in a proper manner. It has been proved on record that search was conducted by a male member i.e. Inspector Shri Bhagwan. However, as per Section 50(4) of the Act, no female shall be searched by anyone excepting a female.
Perusal of the record shows that there are many contradictions in the statements of the prosecution witnesses. PW4 - ASI Maya Ram, in his cross examination stated that "Lady Constable was summoned only at the time of arrest of the accused. The search was not conducted in the presence of lady Constable." Further, PW5 - DSP Sultan Singh, in his cross-examination, has stated that "I also tried to call some lady constable but at that time no lady constable was found available." PW7 - Inspector Shri Bhagwan, in his cross examination has stated that "Search of the jacket worn by Angrej Kaur was taken by the lady constables in the presence of Sh. Sultan Singh, DSP."
Perusal of the record further shows that no explanation has been given as to why no public witness was joined in the police party, as to why no one was summoned from the adjoining place. No public witness was deliberately joined in the police party for witnessing the alleged search of the contraband at bus stand of Fatehabad which is a busy place and many witnesses from the public must be available at the bus stand. As CRA No.S-939-SB of 2000 6 such, non-joining of the independent witness proves to be fatal to the case of the prosecution. The appellant, thus, deserves to be given the benefit of doubt and as such, is entitled to acquittal.
In view of the above, the present appeal is allowed and the judgment of conviction and sentence recorded by the trial Court is set aside. The accused-appellant is acquitted of the charge under Section 15 of the NDSP Act by giving her benefit of doubt.
October 01, 2012 [Paramjeet Singh] vkd Judge