CRIMINAL APPEAL None on 10 May 1995

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH***

Criminal Appeal No. 307-SB of 1999

Date of decision:January 24, 2008

State of Punjab ...Respondent...

CORAM:HON'BLE MR. JUSTICE HARBANS LAL..

HARBANS LAL, J

This appeal is directed against the judgment/order of sentencedated 10.5.1995 rendered by the Court of learned Additional SessionsJudge, Ferozepur, whereby he convicted and sentenced the accused toundergo rigorous imprisonment for ten years and to pay a fine ofRs.1,00,000/- and in default of the same, to further undergo rigorousimprisonment for three months under Section 15 of the Narcotic Drugs andPsychotropic Substances Act, 1985 ( for brevity, 'the Act' ).

As set up by the prosecution, on 21.9.1992 SI Tara Singh,along with other police officials, was going in a Police Canter for patrolling.

When the police party reached the Kacha path leading to Village DharamSingh Wala, the accused appeared from the side of Village Dharam SinghWala on the cycle. He fell down from the cycle. he was apprehended. Therewas a gunny bag on the carrier of his cycle. The above mentioned SubInspector asked the accused to tell whether he wanted to be searched in thepresence of a Gazetted Police Officer or a Magistrate. He offered to besearched by the Sub Inspector. The consent memo. Ex. PB was preparedwhich was attested by Iqbal Singh and Shivdev Singh, who were calledfrom Village Killi Gandhara. On search of the gunny bag, poppy husk wasrecovered. When weighed, the same came to 40 Kg. and 100 grams. 100grams of poppy husk was drawn to serve as sample. Thereafter the sampleand the gunny bag containing the residue were converted into separateparcels and sealed with seal TS and seized vide Memo. Ex. PC along withcycle, Ex. P-2. As a result of personal search of the accused, currency notesworth Rs.108/- were recovered, which along with a wrist watch, were takeninto possession vide Memo. Ex. PD. Ruqa, Ex. PE was sent to the PoliceStation, where on its basis, formal FIR, Ex. PE/1 was recorded. On return tothe Police Station, the Sub Inspector produced the accused along with thecase property before the S.H.O. Avtar Singh, who sealed the case propertywith his own seal AS and took the same into possession vide Memo. Ex.PF. On receipt of Chemical Examiner's Report and after completion ofinvestigation, the charge sheet was laid in the Court for trial of the accused.

The accused was charged under Section 15 of the Act, to whichhe did not plead guilty and claimed trial.

To bring home guilt against the accused, the prosecution hasexamined Dr. Ajit Singh PW-1, SI Tara Singh PW-2, Inspector Avtar Singh PW-3, Constable Sat Pal PW-4, Head Constable Balraj Singh PW-5 andclosed its evidence.

On close of prosecution evidence, when examined underSection 313 of the Code of Criminal Procedure, the accused denied all theincriminating circumstances appearing in the prosecution evidence againsthim and pleaded false implication. He has put forth that he had a disputewith one Naranjan Singh at Kot Isekhan, who managed to get him arrestedin the police post where he was tortured and to justify the injuries caused tohim by the police, he has been involved in a false case. In defence, heexamined Shivdev Singh,DW-1 and Iqbal Singh, DW-2 and closed hisdefence evidence.

After hearing the learned Additional Public Prosecutor for theState, the learned defence counsel and examining the evidence, the learnedtrial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with the judgment/order of sentence dated10.5.1995, the accused has preferred this appeal.

I have heard Mr. Bipan Ghai, Advocate, counsel for theappellant as well as Mr. K. S. Pannu, learned Assistant Advocate General,Punjab, for the State.

Mr. Bipan Ghai, Advocate, appearing on behalf of theappellant, urged with great eloquence that it is in the cross-examination ofSI Tara Singh PW-2 (Investigator) that Iqbal Singh and Shivdev Singh,independent witnesses were called from Village Killa Gandhara to joininvestigation. In the same vein, he has testified that the seal after use washanded over to Head Constable Balraj Singh. He further contended that theprosecution has not assigned any reason for entrusting the seal after use to a police official in the presence of two independent witnesses and further asemanates from the prosecution evidence, the C.F.S.L Form was neitherprepared at the spot nor deposited in the Malkhana. In these circumstances,the possibility of the contents of the sample being tampered with, cannot beruled out.

To overcome these submissions, Mr. K. S. Pannu, learnedAssistant Advocate General, Punjab, submitted that as per Ex. PG, report ofChemical Examiner, the seal of the sample tallied with the specimen sealimpression, which obviously rules out the possibility of tampering with thecontents of the sample.

This contention does not find favour with me. Firstly, it is owncase of the prosecution that Iqbal Singh and Shivdev Singh, independentwitnesses were called from Village Killi Gandhara to join investigation. Ifthey were present at the time of alleged recovery, the seal was required to beentrusted to either of them whereas the same was given to Head ConstableBalraj Singh. Further, there is nothing on the record to show that theC.F.S.L Form was prepared at the place of recovery and the same wasdeposited in the Malkhana. In such a state of affairs, there could be everypossibility of the contents of the sample being tampered with.

As the contents of the alleged Consent Memo. Ex. PB proceed,the accused Gurmukh Singh had expressed that he did not want his search tobe carried out before a Magistrate or a Gazetted Police Officer. Thisdocument is absolutely silent about the fact that the accused was informedabout his right to be searched before a Gazetted Officer or a Magistrate.Further, the reasonable interpretation which can be put on the contents ofthis document is that it is a case of partial offer as the word 'Gazetted Police Criminal Appeal No. 307-SB of 1999

Officer' has been mentioned in it. Thus, this document spells out a flagrantviolation of the mandatory provisions of Section 50 of the Act.

In view of the above discussion, this appeal succeeds and isaccepted. Sequelly, the impugned judgment/order of sentence are hereby setaside and the appellant is acquitted of the charged offence. The bail bondsshall stand discharged.

( HARBANS LAL )JUDGE

January 24, 2008RS

Whether to be referred to the Reporter ?

Yes/No