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Ajaib Singh v. State of Punjab - CRA-1200-SB-2000 [2006] RD-P&H 1913 (22 March 2006)

Criminal Appeal No. 1200-SB of 2000 1


Date of decision : February 17, 2006.

Ajaib Singh Vs. State of Punjab

CORAM: Hon'ble Mr. Justice Virender Singh
Present: Mr. APS Deol, Advocate, for the appellant.

Mr. Ramandeep Sandhu, DAG, Punjab.

Virender Singh, J.

Appellant Ajaib Singh stands convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( in short to be referred to as the `Act') vide impugned judgement of learned Judge, Special Court, Bathinda dated 17-11-2000 and is sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lacs, in default thereof to undergo further RI for six months.

It is worth mentioning here that this appeal was heard on 27.4.2005.

The main thrust of the submissions of learned counsel for the appellant at that stage was with regard to non-compliance of Section 50 of the Act. The learned counsel had placed reliance upon two judgements of Hon'ble Supreme Court and one Full Bench judgement of this Court. However, on the point of applicability of Section 50 of the Act, the matter had already been referred to a Larger Bench of the Hon'ble Apex Court . Before the pronouncement of the judgement in this case, the Apex Court had decided the controversy in the Full Bench judgement rendered in State of Himachal Pradesh Vs. Pawan Kumar, JT 2005(4) SC 373.

Briefly, the case of the prosecution is that the appellant was apprehended by SI Ram Pakash ( PW-3) on 19-8-1997 when the latter along with some other police officials and one Gurmel Singh (independent witness) was present near Kotla Branch Canal. He was carrying a bag on his shoulder. On seeing the police party, he tried to turn back swiftly and consequently nabbed. On suspicion of carrying some contraband, a notice under Section 50 of the Act was given to him. He gave his consent of being searched before some senior police Criminal Appeal No. 1200-SB of 2000 2

official. A message was flashed, whereupon Sh. Brij Mohan Sarup, Deputy Superintendent of Police (PW-1) reached the spot. The appellant then gave his consent of being searched before him. Thereafter the search of bag was conducted in the presence of the witnesses. It was containing opium in a glazed paper. On weighment it was found to be 3Kgs. 500 grams. 10 grams was taken out as sample and sealed in a parcel. The remainder was also sealed in another parcel. Both the parcels were sealed with the seal impression 'RP' (of Ram Parkash). Separate seal impression (Ex. P1) was prepared. Thereafter the entire case property, including the sample seals was taken into possession vide recovery memo. Ex.PB, attested by the said DSP and ASI Mukhtiar Singh besides Gurmel Singh, the independent witness. The seal after use was handed over to Gurmel Singh. Rukka (Ex.PG) was sent to the police station, on the basis of which formal FIR ( Ex.PG/1) was registered. Rough site plan was also prepared at the spot. The appellant was explained the grounds of arrest vide memo. Ex.PD prepared at the spot. On return to the police station, the case property was kept by Ram Parkash, the Investigating Officer in his custody. On the next day the appellant along with the case property was produced before the Illaqa Magistrate ( Sub Divisional Judicial Magistrate), Talwandi Sabo vide application Ex.PK, on which formal order Ex.PK/1 was passed. The Investigating Officer also produced the inventory Ex.PL along with the aforesaid application and then kept the sample parcel with him. He sent the sample to the office of Chemical Examiner along with the sample seal on 20-8-1997 through Constable Biru Khan ( PW-2). A special report ( Ex.PM) was also sent to the senior officer (DSP Balbir Singh), who made his endorsement ( Ex.PM/1) on it. After receipt of the report of Chemical Examiner ( Ex.PN), the appellant was challaned in this case. He was then charged under Section 18 of the Act.

In order to prove its case, the prosecution examined D.S.P. Brij Mohan Sarup as PW1. Constable Biru Khan PW-2 tendered his affidavit (Ex.PE) and SI Ram Parkash PW-3 is the Investigating Officer. Besides this, the report Ex.PN of the Chemical Examiner was also tendered into evidence. Gurmel Singh was, however, given up as having been won over.

The stand taken up by the appellant, as emerging from his statement recorded under Section 313 of the Code of Criminal Procedure is that he was falsely implicated in this case as an altercation had taken place between his father, who is an employee of Railways and one police official. His father was got released with the intervention of the railway officials but the appellant was brought from his house by the police officials in the presence of one Sukhdev Criminal Appeal No. 1200-SB of 2000 3

Singh alias Sukha and thereafter the contraband was planted upon him.

In his defence, the appellant has produced one Sukhdev Singh son of Labh Singh as DW1, who stated that some one had thrown contraband at railway crossing where Teja Singh, father of the appellant was on duty as Gateman. He had deposited the said article at railway station Maur. The police official had protested that it should have been given to them. On the same evening the police had taken the appellant with them and ultimately he was involved in this case.

Hakam Singh son of Kartar Singh (DW-2) has corroborated the defence version of the appellant. Teja Singh DW-3 has also been produced to strengthen the defence of the appellant. Besides this, the appellant has tendered into evidence documents Exhibits DA/1 to DA/5.

After appreciating the entire evidence, the trial Court has convicted the appellant.

Hence this appeal.

I have heard Mr. APS Deol, learned counsel for the appellant and Mr. Ramandeep Sandhu, Deputy Advocate General, Punjab. With their assistance I have also gone through the entire record.

Mr. Deol very fairly states that in the light of the latest Full Bench judgement of Hon'ble Supreme Court , the applicability of Section 50 of the Act, which is otherwise mandatory in nature, is not attracted in this case on facts and therefore, he does not develop his case on that aspect. Mr. Deol otherwise attacks the prosecution case with full force, stating that it is not free from doubt on certain other material aspects, which touch the core.

Mr. Deol contends that the case of the prosecution basically hinges on the investigation conducted by SI Ram Parkash (PW-3), the Investigating Officer of this case and right from the very beginning, it is tainted one. Dwelling upon his arguments, he submits that may be the appellant cannot derive any benefit now on account of the provisions of Section 50 of the Act in the light of the latest Full Bench decision, but the fact remains that the prosecution cannot get out of the documents prepared at the spot for the purposes of showing compliance of Section 50 and once there appears to be some interpolation in any document, it can certainly be taken into account against the prosecution so as to create doubts in the mind of the Court. In this regard, Mr. Deol has drawn the attention of this Court to Exhibit PF, a memo. prepared at the spot. According to him, in this memo., GO (for gazetted officer) has been added subsequently, for giving an indication that the appellant was also given an offer of being searched before a gazetted officer, whereas initially the offer was of being searched before the Criminal Appeal No. 1200-SB of 2000 4

Magistrate or some police officer. The word 'gazetted officer' was conspicuously missing. According to the learned counsel, this was a clever move of the Investigating Officer to show the compliance of Section 50 of the Act. In case the provisions of Section 50 were to be attracted in this case, the appellant would have earned acquittal solely on this infirmity and, therefore at one stage, when this appeal was heard at an earlier occasion, the main thrust of the arguments was non-compliance of Section 50 of the Act. But the situation now is otherwise in the light of the aforesaid Full Bench judgement. In order to strengthen his aforesaid arguments, Mr. Deol has drawn the attention of this Court to the initial ruqqa ( Exhibit PG) also, in which there is no mention of the word 'gazetted officer' and submits that SI Ram Paraksh, the Investigating Officer was not fair in his investigation right from the very out-set.

Another weakness which Mr. Deol projects is that Gurmel Singh, the independent witness brought in by the prosecution, in fact, was a stock witness of the police and that too of the same police station. He submits that in this regard a specific question was put to SI Ram Parkash, who has categorically replied that he had not joined him (Gurmel Singh) in any other case and was not aware of the fact as to whether said Gurmel Singh is cited as a witness in any other case or not. The learned counsel in order to disprove the fact relies upon 1994, registered under Section 15 of the Act at police station Maur, in which aforesaid Gurmel Singh has been shown as one of the attesting witnesses.

According to the learned counsel, this flaw also reflects upon the investigation conducted in the instant case. In support of his contentions, he places reliance upon a Division Bench judgement of this Court rendered in Raj Kumar Vs. State of Punjab, 2005(1) RCR (Criminal) 70.

The other attack launched on the investigation by Mr. Deol is that on the documents prepared at the spot after arrival of DSP Brij Mohan Sarup, the date is not mentioned. This is something unusual and creates doubt even about the presence of the DSP at the spot, who is the main witness to recovery. Otherwise ASI Mukhtiar Singh, who happened to be with the Investigating Officer throughout, has not been produced in the witness-box for the reasons best known to the prosecution.

Lastly, Mr. Deol attacks the investigation yet from another angle, submitting that SI Ram Parkash has conducted the investigation of this case in an unusual manner and this can also create doubt in the mind of the Court. While referring to the subsequent statement of SI Ram Parkash, the learned counsel Criminal Appeal No. 1200-SB of 2000 5

submits that generally the case property is kept with the incharge of the Malkhana under the supervision of the Station House Officer, in order to show the compliance of Section 55 of the Act, but the same is not done in the instant case.

Rather it is otherwise. SI Ram Parkash states that he had kept the case property in his custody in office box. He also stated that he did not send anything except the sample to the Chemical Examiner. According to the learned counsel, the seal remained with the Investigating Officer only till the same was sent. The case property was also kept by him and as such, there was every possibility of the seized substance being tempered with. According to the learned counsel, the Investigating Officer was over jealous in this case and was not even willing to comply with the usual procedure, which is generally followed by all the Investigating Officers. This infirmity can also be taken into consideration coupled with other flaws while discarding the investigation conducted in this case by SI Ram Parkash, the Investigating Officer. In this eventuality, the defence projected by the appellant, which is supported by the witnesses, gets strengthened. In support of his contention, the learned counsel places reliance upon a latest judgement of this Court rendered in Rajesh Jagdamba Avasthi Vs.

State of Goa, 2005(1) RCR (Criminal) 406.

On the basis of the aforesaid submissions, the learned counsel prays for acquittal.

The learned State counsel has, however, controverted the aforesaid submissions. According to him the prosecution has been able to prove its case to the hilt and the impugned judgement is well reasoned one, based on proper appreciation of entire evidence on record. The recovery is also heavy and therefore, the appellant does not deserve acquittal.

After giving my anxious thoughts to the submissions advanced by both the sides and going through the entire records, I am of the firm view that the prosecution has not been able to prove its case qua the appellant.

As fairly stated by Mr. Deol that the appellant on facts cannot gain any benefit with regard to non-compliance of Section 50 of the Act in the light of the latest Full Bench decision of the Apex Court. But I am of the considered view that the investigation conducted in this case right from the very beginning does not appear to be fair. It certainly reflects upon the entire case. The conceded position is that at the stage when the recovery was allegedly effected, the provisions of Section 50 were attracted. That is the reason that some documents regarding compliance of Section 50 were prepared at the spot by the Investigating Officer himself. The rukka (Exhibit PG) was prepared after showing the Criminal Appeal No. 1200-SB of 2000 6

compliance of Section 50. In the said rukka, there is no reference to the fact that an offer was given to the appellant with regard to his option of being searched before 'gazetted officer' also. It is only with regard to the Magistrate or police officer. The consent memo. (Exhibit PF) indicates that the word 'gazetted officer' has been inserted above the main line by giving an indication of GO. This clearly shows that before filing the challan some interpolation has been done in the said document. Certainly it could not be done in the ruqqa, which was already sent for registration of the formal First Information Report, which had also reached the hands of learned Illaqa Magistrate in due course. All this reflects on the conduct of the Investigating Officer.

The matter does not rest here. There is another weakness in this case.

Gurmel Singh, the so-called independent witness, who was subsequently given up as having been won over, is none else but a convenient witness for the police that too for the same police station (Mor), where the instant case is registered against the appellant. SI Ram Parkash denies this fact but the same is now proved from Exhibit DA/3. Once an eye witness to recovery is found to be a stock witness, who had already been cited as a witness to recovery in a case under the Narcotic Drugs and Psychotropic Substances Act. In my view, this flaw can also be taken against the prosecution so as to bring it under the clouds of doubt. The decision in Ram Kumar's case (supra) relied upon by Mr. Deol can be taken into consideration on this point.

Another infirmity which also creates doubt in the mind of the Court is that certain recovery memos do not contain the date under the signatures of DSP Brij Mohan sarup. I have very minutely seen the statement of aforesaid Brij Mohan Sarup especially the cross-examination, in which I find certain discrepancies vis-a-vis the statement of the Investigating Officer and when the aforesaid facts are appreciated in the light of the discrepancies, it again creates doubt about truthfulness of the investigation conducted in this case.

The last limb of argument advanced by Mr. Deol also carries weight. Admittedly SI Ram Parkash was Station House Officer of police station Mor. In his cross-examination, he states that there is one Malkhana in the said police station and the Moharrir Head Constable is Incharge thereof. He also states that an entry was made in the register No. 19 on the same day. However, this witness states that the case property was kept in his custody in office box. If an entry was made in register No. 19 on the same day, then the case property including the samples should have been deposited with the Moharrir Head Constable, who was Incharge of the Malkhana. Section 55 of the Act does not say Criminal Appeal No. 1200-SB of 2000 7

that it has to be kept in the custody of the Station House Officer. As per the case of the prosecution on 20-8-1997, the appellant was produced along with the case property before the court of Sub Divisional Judicial Magistrate, who passed order Ex.PK/1. It is clear from the statement of SI Ram Parkash that he had kept the sample parcel with him along with the sample seal and deposited the remainder in the judicial Malkhana. He sent the sample on 20-8-1997 to the office of the Chemical Examiner through Constable Biru Khan. The other admitted position is that the seal used for sealing the substance (case property and the samples) was of Ram Parkash himself, bearing the impression 'RP'. From the aforesaid factual position, it is now amply clear that the packets and the seal remained in custody of the same person (S.I. Ram Parkash) till it was sent to the office of the Chemical Examiner. Thus, there was every possibility of the seized substance being tempered with. The conviction of the appellant is liable to be set aside inter alia on this ground also. In Rajesh Jagdamba Avasthi's case (supra), it has been observed that since the seal and the packets were in custody of the same person, there was every possibility of the seized substance being tempered with. This flaw has been taken note of seriously by their Lordships of the Supreme Court.

I do not feel the necessity of commenting upon the defence set up by the appellant for the reason that the case of the prosecution is on slippery foot and is being disbelieved by me.

No other point has been urged before me.

No doubt the recovery allegedly effected from the appellant is on heavier side but keeping in view the stringent provisions of the Act, which in commercial quantity cases provide minimum sentence of ten years and a fine of Rs. One lac, the Court cannot just ignore the apparent infirmities in the investigation. The Legislature in its wisdom has, therefore, provided certain safe guards in the Act itself regarding the search of the person. In cases against possession like one under the Narcotic Drugs and Psychotropic Substances Act, the investigation conducted plays a very vital role and, therefore, it should be free from any doubt before resorting to the stringent provisions of penalty. In the case in hand, as discussed hereinabove, the prosecution has failed to prove beyond reasonable doubt the conscious possession of the contraband qua the appellant. In my considered view, he deserves the benefit of doubt.

Resultantly the instant appeal is allowed, the conviction of the appellant, as recorded by the learned trial Court for the charge framed against him, is hereby set-aside and he stands acquitted.

Criminal Appeal No. 1200-SB of 2000 8

The appellant is stated to be in custody. He shall be released forthwith if not required in any other case.

[Virender Singh]


February 17 , 2006

`As kalra'


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