Criminal Appeal No.937-SB of 2001 v. State of Punjab

and Sarabjit Singh) absented himself from the trial Court and was ultimately declared a Proclaimed Offender vide order dated

3.7.2000. The facts of the prosecution case, in brief, are that on

30.6.1996, Sub Inspector Satpal Singh accompanied by other police officials, while on patrol duty in a government vehicle being driven by Constable Nirmal Singh, was present on the bridge of canal minor and was talking with Sarpanch Piara Singh. There, he received a secret information that one scooter bearing registration No. HR-22-A-6377 being occupied by the appellants and Kuldip Singh (Proclaimed Offender) was coming from the side of Dhuri, through Chhintawala wherein the accused were bringing opium for sale in the area of Nabha and the accused could be apprehended with a large quantity of opium if a `naka' was held. Finding this information reliable, ruqa was sent to the Police Station and on its basis instant F.I.R was registered against the accused-respondent. Deputy Superintendent of Nabha Pushpinderpal Singh was requested to reach the spot and he had reached there. In the meantime, one scooter came from the side of Dhuri with all the three accused riding it. They were stopped -3- Criminal Appeal No.937-SB of 2001. and their whereabouts were inquired. Appellant Gurdeep Singh was driving the scooter whereas appellant Sarabjit Singh and Kuldip Singh (Proclaimed Offender) were sitting on the pillion seat of the scooter. The Deputy Superintendent of Police Pushpinderpal Singh disclosed his identity to the accused and told them that their search was to be conducted. After obtaining consent memo from the accused, the Investigating Officer conducted search of the scooter. From the bottom of the petrol tank, opium wrapped in a glazed paper was recovered. Two samples of 10 grams each were taken out from the opium, which were put into separate boxes, converted into parcels and taken into possession. Remaining opium was weighed, which came to be 5 kgs and 480 gms. The bulk opium was taken into possession after putting in a tin box and converting it into a parcel. On completion of investigation and after receipt of the report of the Chemical Examiner declaring the sample to be opium, the challan against the accused was presented in Court. The accused were charged under Section 18 of Act. They did not plead guilty to the charge and claimed a trial. At the trial, the prosecution examined Deputy Superintendent of Police Pushpinderpal Singh (P.W.1), Head Constable Darbara Singh (P.W.2), Head Constable Jarnail Singh (P.W.3), Constable Jagjit Singh (P.W.4), Head Constable Jagdish Chand (P.W.5), Sub Inspector Satpal Singh (P.W.6) and Chhabil Dass (P.W.7). Statements of the accused were thereafter recorded under -4- Criminal Appeal No.937-SB of 2001. Section 313 of the Code of Criminal Procedure, in which they denied the prosecution allegations and pleaded innocence. Appellant Gurdeep Singh, in his statement recorded under Section 313 of the Code of Criminal Procedure, further pleaded as under:- “ On 28.6.1996, the police of Punjab reached our house in Village Haryana and came to arrest us. We raised alarm and on that Balwinder Singh Lambardar Gurcharan Singh reached there. I told the police to bring the police of Haryana if they wanted to arrest us. Then there was a scuffle and the Punjab Police took me and my co- accused in the presence of Balwinder Singh and Gurcharan Singh and brought us to Nabha and falsely implicated us in this case. “ Appellant Sarabjit Singh and Kuldip Singh (Proclaimed Offender) also pleaded as above. In defence, the accused examined C-I Manjit Singh (D.W.1) and Balwinder Singh (D.W.2). The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that five and a half kilograms of opium was recovered from the accused. The trial Court convicted and sentenced the appellants for the offence punishable under Section 18 of the Act, as -5- Criminal Appeal No.937-SB of 2001. mentioned above. I have heard Mr. S.K. Bawa, Advocate, appearing for the appellant and Mr. D.S. Salana, Deputy Advocate General, Punjab, appearing for the respondent-State and have gone through the records of the case. The facts of this case, as mentioned above, disclose that there is no doubt about the fact that the accused- appellants were in conscious possession of the quantity of opium recovered from their possession. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and the independent witness, namely, Piara Singh has not been examined by the prosecution. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-examination of Piara Singh, the only independent witness in the case, has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance while the police party was patrolling the area. Otherwise also, normally the independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear -6- Criminal Appeal No.937-SB of 2001. to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The accused-appellants have also not alleged any enmity with them (police officials). In fact, as noticed above, the accused in their statements recorded under Section 313 of the Code of Criminal Procedure, have admitted the incident. However, they stated that were apprehended when a scuffle had taken place with the police and the accused and that they had been falsely implicated in this case on that account. The police would not plant five and a half kilograms of opium to falsely implicate the accused. In this background, there is no good ground to discard the testimonies of the official witnesses. It is well- settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of huge recovery of five and a half kilograms of opium, from the accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non-examination of Piara Singh, the independent witness. Learned counsel for the accused-appellant also argued that mandatory provisions of Section 50 of the Act were not complied with in this case at the time of recovery of contraband from the accused-appellants and it renders the prosecution version doubtful. In order to appreciate the argument of the learned -7- Criminal Appeal No.937-SB of 2001. counsel, a reference to the relevant provisions of Section 50 of the Act is necessary, which are as under:- “

50. Conditions under which search of persons shall be conducted. - (1)When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Sector 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1) (3) The Gazetted Officer or Magistrate before -8- Criminal Appeal No.937-SB of 2001. whom any such person is brought shall, if he sees no reasonable ground search, forthwith discharge the person but otherwise shall direct that search be made. (4) xx (5) xx (6) xx (7) xx xx” A perusal of the above provisions of Section 50 (1) of the Act reveals that incorporation of the words “when any officer duly authorized under Section 42 is about to search any person” therein depicts that only when personal search of any person is required to be made, the Police Officer concerned is required to apprise him of his right existing under this Section i.e as to whether he wanted to be searched before a Gazetted Officer or before a Magistrate. Such a requirement is not there when the Police Officer concerned is going to search houses, building etc. Such a view was taken by a Full Bench of this Court in the case of State of Punjab v. Kulwant Singh, 1994 (1) Recent CR 303 wherein in para 46 at page 317, it was observed as under:- -9- Criminal Appeal No.937-SB of 2001. “ xx. The provisions of sub- sections (1), (2) and (3) of Section 50 were enacted by the Legislature in its wisdom only qua the personal search of a person and not regarding the search of houses, building etc. obviously to preserve the human dignity. There is logic behind enacting the special provisions regarding the personal search, because a person can carry only a small quantity of contraband narcotic drug or psychotropic substance. Thus, in order to rule out the possibility of planting small quantity of such drugs at the instance of unscrupulous officers of the enforcing agency and to eliminate the chances of exploitation, the above-referred substantive right has been conferred upon the suspected person. A conjunct reading of the provisions of Section 50 of the Act leaves no doubt that the Legislature did not intend to confer a distinct right upon the suspect to claim personal search before a Magistrate or Gazetted Officer and prove his innocence in recognition of the right to human dignity and free from exploitation flowing from Article 21 of the Constitution. “ -10- Criminal Appeal No.937-SB of 2001. There was, thus, no violation of the mandatory provisions of Section 50 of the Act, as argued by learned counsel for the accused-appellant. In this view of the matter, as the recovery of five and a half kilograms of opium in this case was made from the bottom of the petrol tank of the scooter and, obviously, was not to be effected as a result of personal search of the accused, it is of no consequence whether the accused were apprised of their right to be searched before a Gazetted Officer or before a Magistrate or not. Consequently, I do not find any merit in this appeal and dismiss the same. March 29, 2010. ( MOHINDER PAL ) JUDGE