Punjab-Haryana High Court
The State Of Punjab vs Ajit Singh on 17 September, 2007
Author: Nirmal Yadav
Bench: Jasbir Singh, Nirmal Yadav
JUDGMENT Nirmal Yadav, J.
1. Leave to appeal was granted to the State of Punjab to challenge the judgement dated 09.09.1999 passed by the learned Additional Sessions Judge, acquitting respondent Ajit Singh for the charge framed against him under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as 'the Act').
2. Prosecution story as unfolded by SI Surjit Chand, is that on 06.04.1996, he, along with ASI Lakhwinder Singh and other police officials, was going from Bharat Nagar Chowk towards Bus stand, Ludhiana for patrolling in a private gypsy for checking of bad elements in the area. When police party reached near the bus stand, Ludhiana, Deputy Superintendent of Police Gurmail Singh, along with his staff also met them. When the police party reached on the crossing of Model Town Extension, one person was seen coming from the side of Jawaddi bridge on the scooter bearing registration No. PCF 8934. On seeing the police party, he turned the scooter in an attempt to go back. On the basis of suspicion, he was apprehended. Meanwhile, Om Parkash also reached at the spot. He was associated with the police party. The search of the said person was conducted by SI Surjit Chand in the presence of DSP Gurmail Singh. One plastic bag of white colour was found lying on the foot rest of the Scooter. Upon search of the said bag, opium wrapped in a glazed paper was recovered, which was found to be 9 kilograms on weighment. Out of the recovered contraband, two samples of 10 grams each were separated. They were put into two separate small tin boxes and were converted into parcels. The residue opium was also put in a tin box and made into parcel. All the three parcels were sealed with seal of Surjit Chand bearing impression 'SC' as well as with seal of DSP Gurmail Singh superscripting 'GS'. Specimen of the seals was also prepared. The seal of Surjit Chand, after use, was handed over to ASI Lakhwinder Singh and seal of Gurmail Singh, DSP was kept by himself. Case property was taken into possession vide recovery memo EX PA, which was attested by ASI Lakhwinder Singh and Om Parkash (PWs). Personal search of the accused was also conducted and Rs. 342/-were recovered, which were taken into possession vide recovery memo EX PB, attested by the aforesaid witnesses. Ruqa, EX PC, was sent by the Investigating Officer to the Police Station, on the basis of which, FIR EX PC/1 was recorded. Rough site plan EX PD was prepared. Statements of the witnesses were also recorded. Accused was arrested. On return to the Police Station, case property was handed over to MHC Tarlochan Singh and higher officers were also informed through special report. On 07.04.1996, the incharge of Police Station moved application, EX PF, before the Judicial Magistrate Ist Class, Ludhiana seeking permission to produce the case property. The learned Magistrate on checking the case property having been sealed with seals of SC and GS, returned the same after putting his signatures on it, vide order EX PF/1. The parcel containing samples was sent to the office of Chemical Examiner for analysis, who vide report, EX PG opined the contents of the seized contraband to be that of opium. On receipt of report of the Chemical Examiner, the accused was challaned and charged under Section 18 of the Act.
3. To prove its case, the prosecution has examined as many as 8 witnesses viz. PW1 Constable Hardip Singh, who submitted the special report to the concerned officer, PW2 Constable Binder Singh and PW3 Head Constable Tarlochan Singh, formal witnesses whose affidavits are EX PX and EX PX/1, respectively, PW4 ASI Mohan Lal, partly investigated the case, PW5 Lakhwinder Singh, the recovery witness, PW6 Surjit Chand, the Investigating Officer, PW7 Om Parkash, the independent witness joined by the police party and PW8 DSP Gurmail Singh, who was present at the time of search and seizure of the alleged contraband.
4. The accused when examined under Section 313 of the Code of Criminal Procedure, denied the incriminating material against him and pleaded false implication.
5. After evaluating the entire evidence on record, the learned trial Court acquitted the accused of the charge framed against him, vide the impugned judgement.
6. We have heard learned Counsel for the parties and have gone through the material on record.
7. Learned State counsel argued that learned trial Court has fell into a grave error in holding that there is non-compliance of Section 50 of the Act. It is argued that in the present case the provisions of Section 50 of the Act were not required to be complied with, as the alleged contraband was not recovered from the personal search of the accused and it was found in a bag lying on the foot rest of his scooter. He further argued that even the argument with regard to link evidence is without any force. It is submitted that PW6 SI Surjit Chand, the Investigating Officer, has categorically stated that after completion of the proceedings at the spot, he returned to the police station and deposited the case property with PW3 MHC Tarlochan Singh. On 7.04.1996, he had taken the case property from MHC Tarlochan Singh and produced the same before the Judicial Magistrate Ist Class, Ludhiana, vide request EX PF and learned Magistrate passed order EX PF/1 and on the same day, he re-deposited the case property with MHC with its seals intact.
8. Learned State counsel further argued that there may be some minor discrepancies in the statements of the witnesses, as they were examined in the Court after a lapse of almost three years. The alleged recovery was conducted in the month of April, 1996 and the witnesses were examined in the Court on 10.02.1999. Learned State counsel also argued that the trial Court has unnecessarily given importance to the fact that some cases were registered against the Investigating Officer (PW6) prior to the occurrence and thereafter. It is argued that in the cross examination this witness has categorically stated that most of the cases, registered against him, were later on cancelled. It is further submitted that there is not even an iota of evidence that police officials, in any way, were biased against the accused. It is pointed out that keeping in view the quantity of recovered contraband i.e. 9 kilograms opium, it was not possible for the investigating agency to plant the same against the accused.
9. On the other hand, learned Counsel for the respondent submitted that the prosecution case suffers from serious infirmities. The Investigating Officer did not comply with the provisions of Section 50 of the Act. He was required to give the accused an option, as required under Section 50 of the Act before conducting his search. Learned Counsel further argued that the provisions of Section 55 of the Act have also been violated in this case. It is apparent from the statement of PW6 SI Surjit Chand that he never produced the case property before SHO, though Balbir Chand Tiwari, SHO was present in the police station. Neither the SHO took charge of the case property nor any inventory was prepared by him.
10. He further pointed out that there is also contravention of Section 57 of the Act, as no report with regard to search of accused and alleged seizure of contraband from him was made to the superior officers in writing.
11. It has been further argued that the prosecution has failed to prove the link evidence connecting the respondent with the seized contraband. It is pointed out that the recovery is alleged to have been made on 06.04.1996 and there is no evidence that it was deposited with the MHC on the same day. As per the statement of PW6 Surjit Chand, he produced the case property before the learned Magistrate on 07.04.1996. However, there is nothing on record to show that the case property was not tampered with till it was produced before the Magistrate. It is further submitted that there is also no evidence that it remained in safe custody till it was deposited in the office of Chemical Examiner. Learned Counsel also pointed out that the seal of PW6, after its use, was handed over to PW5 ASI Lakhwinder Singh and the seal of DSP Gurmail Singh remained with him, whereas the seals should have been handed over to the independent witness i.e. PW7 Om Parkash. Since it was not done so, possibility of tampering with the seal as well as seized contraband cannot be ruled out.
12. On careful consideration of the rival submissions, we are of the view that the applicability of the provisions of Section 50 of the Act need not detain us for long, as this matter has been well settled by the Apex Court in number of judgements i.e. State of Himachal Pradesh v. Pawan Kumar 2005(2) Criminal Court Cases 358 (SC), State of Haryana v. Jarnail Singh and Ors. 2004 (2) RCR (Criminal) 960 (SC) and State of Rajasthan v. Ramesh Chandra-AIR 2005(SC) 2133. In the aforementioned judgements, the Apex Court has observed that search of a person does not include search of the baggage, articles, which could be separated easily from the body. The Apex Court in the aforementioned cases has further observed that to lend credibility to the prosecution case and to ensure the transparency and fairness during search and seizure, at least an independent witness should have been associated with the investigation.
13. Admittedly, in the present case, PW-7 Om Parkash, the independent witness, has been joined in the investigation. He has fully supported the prosecution case. He has categorically stated that 9 kilograms opium was recovered from the accused. Two samples each weighing 10 grams of opium were separated and were put into two empty boxes. Remaining bulk was also put in another box, which was converted into parcel. He further stated that the case property was sealed, however, he failed to mention as to whose seal it was in the examination-in-chief. According to him, the case property produced in the Court was the same, which was recovered at the spot. Since this witness was examined after a lapse of period of almost three years, he might have not remembered the letters of the seals put on the parcel. However, when cross examined, this witness has categorically stated that the parcels were sealed with the seals of Surjit Chand bearing impression of 'SC' as well as DSP Gurmail Singh, having impression of 'GS'. He further stated that the seal of Surjit Chand was handed over to ASI Lakhwinder Singh and seal of DSP Gurmail Singh was retained by himself.
14. For the sake of repetition, it may be stated that minor discrepancies in the statement of the witness could have crept in, because of its having been recorded after a lapse of almost three years. Learned Counsel for the respondent further pointed out that the testimony of Investigating Officer is not at all trustworthy. In the examination-in-chief, he has stated that he produced the accused along with case property before Balbir Chand Tiwari, SHO of the police Station. However, in his cross examination, he admitted that he had not produced the accused along with case property before the SHO of the police Station and rather stated that he had directly deposited the case property with MHC. He further stated that several cases were registered against him as he had registered false cases against many persons.
15. On a careful scrutiny of the statement of PW6 Surjit Chand, the investigating Officer, it is true that initially in the cross examination, he has stated that the case property was produced before SHO Balbir Chand Tiwari. However, he corrected himself in the cross examination and stated that he did not produce the accused along with case property before the SHO. He deposited the case property with MHC. He stated so in examination-in-chief due to inadvertence. We are also of the opinion that such a statement could have been made by inadvertence as his statement was recorded in the Court after a lapse of almost three years of the search and seizure. This witness categorically stated that he had joined Om Parkash, a public person as witness. The entire proceedings were conducted in the presence of DSP Gurmail Singh, the Gazetted Officer and Om Parkash, the independent witness. After completion of the entire proceedings, he deposited the case property with MHC on the same day. On the next day, he took the case property as well as the accused at about 12 noon from the Malkhana and produced before the Magistrate at about 2.00 or 2.30 P.M. The case property was again deposited with MHC at about 5.00 or 6.00 P.M. on the same day. Except some minor discrepancies with regard to handing over the seal, after its use, to ASI Lakhwinder Singh, the testimony of PW 7 Om Parkash, fully supports the prosecution case. Even, DSP Gurmail Singh has fully supported the search and seizure made from the accused. He was also cross examined by the Public Prosecutor. This witness due to lapse of time stated in the examination-in-chief that a plastic bag of white colour was recovered from the luggage-boot of the scooter. However, in the cross examination, he corrected himself by stating that a white bag was found lying on the foot rest of the Scooter. This may also be on account of his examination being conducted after a lapse of almost three years.
16. Learned Counsel for the respondent also pointed out that there are some discrepancies in the statements of PW5 ASI Lakhwinder Singh and PW8 DSP Gurmail Singh qua weighment of the alleged contraband. According to PW8, recovered opium was weighed 9 times with the weight of one kg. Whereas, PW5 has stated that the opium was weighed thrice with two weights of 5 kgs. each which were kept in one pan and the opium was kept in the other pan with one kg. weight. To our mind, these discrepancies are not very significance in view of the statements, having been recorded after a gap of almost three years.
17. Learned Counsel for the respondent further argued that the prosecution has failed to prove the link evidence in the present case.
18. Admittedly, the search and seizure was conducted in presence of DSP Gurmail Singh, who had affixed his seal on the samples as well as on the remainder case property. PW7 Om Parkash, who was joined in the investigation as an independent witness, has fully supported the prosecution case. Even the statements of PW5 ASI Lakhwinder Singh and PW6 SI Surjit Chand, the Investigating Officer, have fully supported the prosecution case. Though, a few discrepancies have been pointed out in their statements, but as discussed above, such discrepancies are bound to occur, as their statements had been recorded after a lapse of almost three years of the occurrence. According to PW6, SI Surjit Singh, the case property was deposited with MHC on 06.04.1996. On the next day, he took the case property from MHC and produced the same along with accused before the Magistrate vide application EX PF, who passed order EX PF/1 stating that the case property and accused were produced before him and he returned the case property after putting his signature on the same. The report of the Chemical Examiner, EX PG also shows that the seal on the case property was found intact and agreed with the sample seal. Sample seals were duly attached with Form No. 29, forwarded to the Chemical Examiner.
19. It is true that there is no explanation with regard to sending of the sample after a delay of 10 days. However, there is also nothing on record to suggest that the case property was tampered with during the period it remained with MHC and till the sample was sent to the Chemical Examiner. MHC Tarlochan Singh, in his affidavit EX PX/1, has categorically stated that the case property was deposited with him on 06.04.1996. Then on 16.04.1996 he entrusted to Constable Binder Singh one sample parcel sealed with seal of 'SC' and 'GS', along with specimen seals and Form No. 29 after taking out from the Malkhana of Police Station, who carried the same to the office of Sr. Superintendent of Police, Ludhiana and got the docket issued. On the same day, he took the sample parcel containing 10 grams opium bearing impressions 'SC' and 'GS', docket as well as specimen seal, along with Form No. 29. He deposited the same with the Chemical Examiner Laboratory and receipt with regard to deposit of the same was handed over to him by Constable Binder Singh. In para 5 of the affidavit, he has categorically stated that till the time, the sample of this case, along with the specimen seal and case property remained with him, it was not tampered with by him nor he allowed any body else to do so. Constable Binder Singh swore an affidavit EX PX stating therein that on 16.04.1996, he took one sample parcel, along with specimen seal, from Police Station Malkhana for getting the docket issued from the office of Sr. Superintendent of Police, Ludhiana. Thereafter, he went to the office of SSP, Ludhiana and got the docket issued. On the same day, he went to the office of Chemical Examiner, Patiala and handed over the above said articles in that office and during this period, it remained in his safe custody. Till it was handed over in office of Chemical Examiner, it was not tampered with by anyone.
20. Taking into consideration the facts as noted above, we are of the view that the prosecution has been able to prove the link evidence that the sample parcel with seals intact thereon was deposited with the Chemical Examiner along with the specimen seals.
21. Learned Counsel for the respondent further argued that the Appellate Court would interfere in an appeal against acquittal only when two views are possible and the one which favours the accused has to be adopted by the Court.
22. In the instant case, on a careful consideration of the entire evidence on record, we are of the view that the findings of the trial Court are based on misreading of the evidence. In the present case, compliance of provision of Section 50 of the Act was not required. Even compliance of provision of Sections 55 and 57 of the Act are directory and not mandatory. There is nothing on record to suggest that the case property was, in any way, tampered with or was not kept in safe custody. The requirement of Section 57 of the Act was also not relevant in the present case, as DSP Gurmail Singh was himself present at the spot and even if the information was not sent, it does not cause any dent on the merits of the prosecution case.
23. In view of the above discussion, we are of the view that the prosecution has been able to establish its case beyond reasonable shadow of doubt that the accused was found in possession of 9 kilograms opium and the search and seizure has been fully supported by PW8 DSP Gurmail Singh, the Gazetted Officer as well as PW7 Om Parkash, the independent witness, besides two police officials PW5 ASI Lakhwinder Singh and PW6 SI Surjit Chand, the Investigating Officer. There is not even a suggestion put forth to the police officials that they were, in any way, inimical or biased towards the accused.
24. In view of the above, the respondent/accused Ajit Singh is held to be guilty for being in possession of 9 kilograms opium without any permit or licence, punishable under Section 18 of the Act.
25. Accordingly, the appeal is accepted and the judgement of the trial Court is set aside.
26. With regard to sentence, learned Counsel for the respondent/accused contended that the alleged occurrence took place in the month of April,1996 and at that time, he was a young man of 28 years, therefore, a lenient view be taken while awarding sentence to the accused.
27. Taking into consideration that if contravention involves commercial quantity, Section 18 of the Act provides the minimum sentence of rigorous imprisonment for a period of ten years and fine not less than of Rs. One lac. Accordingly, the respondent/accused is ordered to undergo RI for a period of ten years and to pay a fine of Rs. One lac. In default of payment of fine, the accused shall further undergo RI for a period of two years.