Criminal Appeal No.1464 -SB of 2005 v. The State of Punjab

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL Present: Mr.S.P.S.Sidhu, Advocate for appellant Balkar Singh. Mr. D.S.Malwai, Advocate, for appellant Gurmit Singh. Mr.Vishal Munjal, Additional Advocate General, Punjab for State-respondent. -.- Criminal Appeal No.1464 -SB of 2005 2 MOHINDER PAL, J. This judgment will dispose of Criminal Appeal No.1464 -SB of 2005 and Criminal Appeal No.1784-SB of 2005 as they arise out of the same First Information Report. Appellants Balkar Singh and Gurmit Singh have filed these appeals against the judgment of conviction and the sentence order dated

08.07.2005 passed by the Special Judge, Ferozepur, whereby they were convicted under Section 15 (c) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,00,000/-, each and in default of payment of fine, the appellants were sentenced to undergo further rigorous imprisonment for one year. The prayer made in these appeals is to set aside the impugned judgment and the sentence order by way of acceptance of these appeals and to acquit the appellants of the charge framed against them under Section 15 of the Act. The prosecution case, in brief, is that on 04.03.2003, Assistant Sub Inspector Gurpreet Singh along with Head Constable Puran Chand while being posted at police post Bahavwala Police Station Sadar Abohar, accompanied by other police officials was going for nakabandi in a private jeep.

When the police party headed by him reached at the bus stand of Bhagu, independent witness Jagir Singh was joined in the police party. When the police party proceeded towards from Village Bhagu to Dode, then a jeep mark Commander Mohindera came from the side of Village Dode. Assistant Sub Inspector Gurpreet Singh signalled the jeep to stop. Accused Balkar Singh was driving the jeep whereas accused Gurmit Singh was Criminal Appeal No.1464 -SB of 2005 3 sitting by his side. On seeing the police party, the accused tried to turn the jeep back. However, the jeep was made to stop by the police party. Both the accused were told by the police that they wanted to conduct search of the jeep as they were suspected to be carrying some contraband article. The accused were given an option that they could get their search conducted before a Magistrate or a Gazetted Officer. Both the accused opted for their search to be conducted in the presence of Assistant Sub Inspector Gurmeet Singh.

Two consent memos of the accused in this regard were prepared. Upon search, two bags, each containing 35 Kgs of poppy husk were recovered from underneath the rear seats of the jeep. Two samples of 250 grams each were separated from each bag. The samples and the remaining poppy husk contained in two bags were separately sealed with the seal bearing impression GS and taken into possession by the police. Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station Sadar, Abohar, and on its basis formal F.I.R was registered against the accused under Section 15 of the Act. After registration of the case against the accused, they were formally arrested and memos containing grounds of their arrest were prepared. On the next day, the accused and the case property were produced before the Ilaqa Magistrate by Inspector Raj Kumar. The Magistrate authenticated the intactness of the seals on the parcels of the samples and the parcels of bulk contents.

Thereafter, the case property was re-deposited in the `Malkhana'. Sample parcels were sent for analysis and vide report (Exhibit P.10) of the Chemical Examiner, their contents were found to be of poppy heads. Criminal Appeal No.1464 -SB of 2005 4 After completion of investigation and necessary formalities, challan was put in Court against the accused-appellants. Charge was framed against the appellants for the offence punishable under Section 15 of the Act. They did not plead guilty to the charge and claimed trial. In support of its case, the prosecution examined Inspector Raj Kumar (P.W.1), Mahesh Kumar Clerk (P.W.2), Head Constable Puran Chand (P.W.3), Assistant Sub Inspector Gurpreet Singh (P.W.4), and Constable Randhir Singh (P.W.5). On closure of the prosecution evidence, statements of the accused-appellants were recorded under Section 313 of the Code of Criminal Procedure in which they denied the prosecution allegations and pleaded innocence.

Accused Balkar Singh in his statement stated as under:-

I am innocent. Previously I remained Member of Block Samiti. Tehal Singh of Village Khambe is relative of ASI Gurpreet Singh. This time I was again to contest the election of Block Samiti and Tehal Singh was also interested in contesting the election and he brought some persons to me and asked me not to contest this time but I refused to accede his request. Due to his grudge, I along with my jeep was taken from my house on 03.03.2003 by ASI Gurpreet Singh and some other police officials and this false case was registered against me.

Accused Gurmit Singh simply stated that he was falsely implicated in this case. No evidence was led by the accused in their defence. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt that two bags, each containing 35 Kgs of poppy husk were recovered from the Criminal Appeal No.1464 -SB of 2005 5 accused.

The trial Court convicted and sentenced the appellants, as mentioned above. I have heard Mr.S.P.S.Sidhu Advocate, appearing for appellant Balkar Singh and Mr. D.S.Malwai, Advocate, appearing for appellant Gurmit Singh and Mr.Vishal Munjal Additional Advocate General, Punjab appearing for the State-respondent 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 poppy husk recovered from their possession. Learned counsel for the appellants has first of all argued on the point that Section 50 of the Act has not been complied in this case. According to him, the offer given to the accused was not a proper offer as the Investigating Officer had further offered for search to be conducted by himself. In support of his submission, learned counsel has referred to the decision of the Apex Court in Union of India Vs.

Shah Alam and another 2009(3) RCR(Criminal) 159 and, as such, the accused are entitled for acquittal. These arguments have been controverted by the learned State counsel on the ground that compliance of Section 50 of the Act is not necessary in this case in view of the recovery having been effected from the vehicle. I have given my thoughtful consideration to the submissions made by both the sides. Undoubtedly, recovery has been effected from the jeep and not Criminal Appeal No.1464 -SB of 2005 6 from the person of the accused. Section 50 of the Act is reproduced as under: “50. Conditions under which search of persons shall be conducted- (1)When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 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 the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched, parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.” Criminal Appeal No.1464 -SB of 2005 7 Exs.P12 and P13 are the consent memos available on the trial Court file. A close perusal of these documents shows that the Investigating Officer has given an offer to the accused that they could get their search conducted before a Magistrate, Gazetted Officer or from him (Investigating Officer). The accused reposed confidence in the Investigating Officer and, thereafter, search of the vehicle has been conducted and that of the person of the accused and the contraband has been recovered. In number of judgments passed by this Court as well the Apex Court, this point has been settled by now that if recovery of the contraband is a chance recovery, in that case, offer as required under Section 50 of the Act is mandatory.

The proposition of law contained in the case cited by the learned counsel for the appellants 2009(3) R.C.R.(Criminal) (supra) cannot be disputed. However, each case has is own facts and there cannot be a straight-jacket formula to implement the judgments passed in a particular case. It has been then argued that there is delay of 22 days in sending the samples to the Chemical Examiner as the recovery is of 4th March, 2003 whereas the samples were sent to laboratory on 26th March, 2003. Ex.P9 is the C.F.S.L. Form filled by PW1 Inspector Raj Kumar on 26.03.2003. Recovery was effected on 04.03.2003 and as per requirement of Law this form is to be filled at the spot. Ex.P10 is the Chemical Examiner's report, according to which, the samples have been sent for analysis and the same were received on 27.03.2003 with the particulars written on it. The seals on the samples were intact on arrival and agreed with the specimen of the seal sent with the samples.

The samples remained in safe custody after its receipt till the analysis was started. Once seals have remained intact, no benefit of Criminal Appeal No.1464 -SB of 2005 8 the same can be given to the accused merely on the ground that samples have been sent for analysis after a gap of 22 days. Therefore, the argument of learned counsel for the appellants on this point fails. Further, it has been argued that though independent witness Jagir Singh was joined by the prosecution. However, he has not been examined in the Court. Learned State counsel is the author of the case till the same is decided by the Court. Though Jagir Singh independent witness has been joined by the prosecution, however, he has been given up having been won over by the accused. Once a witness has been won over by the accused, the benefit of the same cannot be given to the accused simply on the ground that he has not been examined.

Finally, it has been argued that police party was moving on a private car and not on official vehicle. All these points are to be viewed on account of prejudice having been caused to the accused. Though the police official has tried to give an explanation as the car in question belongs to one of his friends but in absence of any prejudice having been caused to the accused, this point cannot be stressed further. No other point has been argued before me by the learned counsel for the appellants. For the aforesaid reasons, I do not find any merit in these appeals. The same are hereby dismissed. May 14, 2010. ( MOHINDER PAL ) JUDGE