CRIMINAL APPEAL NO. 96-DBA OF 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: November 19, 2009. Parties Name State of Punjab ..APPELLANT VERSUS Jasmail Singh ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. D.S. Brar, Deputy Advocate General, Punjab, for the appellant Mr. G.S. Punia, Advocate, for the respondent. JASBIR SINGH, J. ORDER. State of Punjab has filed this appeal against judgment dated September 16, 1998, vide which respondent was acquitted of the charge framed against him. It was allegation against the respondent that he was found in possession of 1.200 kilogram of opium on August 24, 1994, without any permit or licence. Case of the prosecution, as noted by the trial Court, reads thus: “On 24.8.1994, ASI Darshan Singh of CIA Staff, Ludhiana, along with ASI Tirth Singh and other police officials was proceeding from Sherpur Chowk to Samrala Chowk for the CRIMINAL APPEAL NO. 96-DBA OF 1999 -2- purpose of patrolling in a Govt. vehicle. When the police party reached on a link road, Transport Nagar, accused was seen coming from the side of Transport Nagar and was carrying a 'jhola' in his right hand. On seeing the police party, he tried to slip away. On suspicion, he was apprehended. From his search, opium wrapped in glazed paper was recovered from the 'jhola' carried by the accused. Thereafter, accused was asked whether he wanted to conduct the proceedings from higher officer or a magistrate and he reposed faith in ASI Darshan Singh. His statement Ex. PA was recorded. The opium was weighed which came to 1 Kg. 200 grams. Two samples of 10 grams each were separated and bulk of the opium was transferred to a tin box. All the three parcels were sealed with the seal bearing impression 'DS'. Case property was taken into police possession vide Memo Ex. PB. Ruqqa Ex. PC was drawn and sent to the Police Station and on its basis case was registered against the accused vide FIR Ex. PC/1. ASI Darshan Singh prepared the rough site plan, recorded the statements of the witnesses and arrested the accused.” It has also come on record that ASI Darshan Singh (PW2), the Investigating Officer, prepared sample of the seal on chit Ex. P1. The seal, after use, was handed over to ASI Tirth Singh. PW2 also recorded statements of the prosecution witnesses and sent a report to the higher police officers. After completing investigation at the spot, he came to the Police Station. Respondent- accused and the case property were produced CRIMINAL APPEAL NO. 96-DBA OF 1999 -3- before Inspector Shamsher Singh, who verified the same and affixed his own seal thereon bearing letters 'SS'. The case property was deposited with MHC Beant Singh on August 25, 1994. Respondent- accused and the case property were produced before a Judicial Magistrate at Ludhiana. By passing order Ex. PE/1, the Magistrate concerned sent the respondent accused to police custody till August 27, 1994. The Magistrate also verified the case property. Inspector Shamsher Singh (PW4) then deposited the case property in Police Malkhana at Ludhiana. PW2 has specifically stated that so long the case property remained with him, he had not tampered with the same. In the meantime, case property was sent to the Forensic Science Laboratory for examination. As per report (Ex. PF), morphin content in the sample was found to the extent of 1.5 % and it was declared as opium. As per report given by the Forensic Science Laboratory, seal on the exhibit was intact and tallied with the sample seal. On completion of investigation, final report was put in Court for trial of the accused. The respondent – accused was charge-sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced four witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the respondent was recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to him, which he denied and pleaded innocence and false implication. In defence, he stated that he was already in the custody of CIA Staff at Ludhiana and a false case was implanted upon him. He led no evidence in defence. The trial Court, on appraisal of evidence, acquitted the respondent primarily on the ground that before effecting search, in which CRIMINAL APPEAL NO. 96-DBA OF 1999 -4- opium was recovered from a bag, the provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) were not complied with. It was further opined that despite availability, independent witnesses were not joined in the investigation and further that seal, after use, was handed over to Tirth Singh, ASI, by the Investigating Officer. However, he was not examined during trial. By filing this appeal, challenge has been laid to the judgment dated September 16, 1998, acquitting the respondent. Counsel for the appellant states that the opium was recovered from a bag, which the respondent was holding in his hand. By making reference to ratio of the judgment of the Constitution Bench of the Hon'ble Supreme Court in State of Punjab v. Baldev Singh, (1999)6 Supreme Court Cases 172, he argued that in such like situation, the provisions of Section 50 of the Act will not be applicable. The opium was recovered from a bag and not from person of the respondent. He further argued that non-joining of the independent witnesses has sufficiently been explained by the police officers. Merely because the person, to whom seal was handed over, was not examined, the benefit of acquittal cannot be granted to the respondent. He also argued that after recovery of the contraband, the respondent was produced before the concerned Magistrate, who verified the case property, and remanded the respondent to police custody for further investigation. At no time, respondent raised any objection, regarding his false implication, before the officer concerned. He prayed that the appeal be allowed, judgment under challenge be set aside and the respondent be convicted and sentenced for the offence with which he was charged. Prayer, made by the State counsel, has been opposed by Shri CRIMINAL APPEAL NO. 96-DBA OF 1999 -5- G.S.Punia, Advocate, who has put in appearance on behalf of the respondent. He vehemently argued that the provisions of Section 50 of the Act would be applicable in the present case. Once it has come on record that the respondent was holding a bag in his hand, out of which opium was recovered, the same would amount to a search from person of the respondent. He further argued that for want of independent corroboration, case of the prosecution cannot be relied upon. He also argued that there is delay in sending the sample for chemical examination, benefit of which must go to the respondent – accused. He prayed that the appeal, having no substance, be dismissed. After hearing counsel for the parties, this Court is of the opinion that the trial Court has wrongly opined that the provisions of Section 50 of the Act are applicable in the present case. It has come on record that an offer of search, before a Magistrate/ Gazetted officer was made to the respondent , after recovery of the contraband. The opium was recovered from a bag and not from person of the respondent. In view of settled position in Baldev Singh's case (supra), this Court is of the view that the trial Court has erred in giving benefit of non-compliance of the provisions of Section 50 of the Act to the respondent. Their lordships of the Supreme Court in Ghasita Sahu v. State of Madhya Pradesh (2008)3 Supreme Court Cases 52, where Ganja was recovered from a gunny bag, lying in one room, in occupation of the accused therein, held that the provisions of Section 50 of the Act would not be applicable. Similarly, in the case of State of Haryana v. Mai Ram son of Mam Chand, (2008)8 Supreme Court Cases 292, their Lordships of the Supreme Court held that recovery of a contraband, from a bag, would not amount to recovery on CRIMINAL APPEAL NO. 96-DBA OF 1999 -6- personal search of the accused. In that case, contraband was recovered from a bag, which the accused therein was carrying in his right hand. After trial, he was convicted. However, the High Court acquitted him on the ground that there was non-compliance with the provisions of Section 50 of the Act. State of Haryana went in appeal, which was accepted by holding that a mere reading of Section 50 of the Act shows that compliance has to be made only in case of personal search of a person and it does not extend to search of a vehicle or a container or a bag or the premises. It was further observed that the language of Section 50 of the Act is clear that the search has to be in relation to a person, as contrasted to search of premises, vehicle or articles. In that case, judgment of acquittal, passed by the High Court, was set aside and that of the trial Court, convicting the accused therein, was restored. Same is the situation in the present case. Recovery is from a bag. As such, this Court is of the view that the provisions of Section 50 of the Act were not applicable to the facts of this case. Further contention of counsel for the respondent that there is no independent corroboration to the prosecution story and on account of that, benefit of doubt be extended to the respondent, is also not justified. The testimony of the official witnesses is to be scrutinised in a very careful manner and if it inspires confidence, the same can be relied upon without any independent corroboration. In the present case, the Investigating Officer, ASI Darshan Singh, (PW2) has stood rigor of the cross- examination. He has clearly stated that despite efforts made, none from the public came forward to join the investigation. Statement made by the Investigating Officer has been supported by Head Constable Darshan Singh (PW1). Recovery of the contraband from the respondent is amply proved CRIMINAL APPEAL NO. 96-DBA OF 1999 -7- on record. So far as delay in sending the sample for examination, to the Laboratory, is concerned, in view of facts of this case, no benefit can be extended to the respondent in that regard also. The Investigating Officer has stated that he prepared a sample of the seal on a chit, and on that chit, sample of the seal, put on the contraband, by the SHO, was also marked. The Investigating Officer handed over the seal, after use, to ASI Tirth Singh. In report of the Forensic Science Laboratory, it is clearly mentioned that seals on the sample were intact and tallied with the chit containing sample of the seal. It has also come on record that after recovery on August 24, 1994, case property along with accused was produced before the concerned Magistrate, who verified the seals and remanded the respondent – accused in police custody. Head Constable Beant Singh (PW3) has also stated that so long as case property remained with him, it was not tampered with and the seals remained intact. Sample of the contraband was deposited with the Forensic Science Laboratory by Constable Iqbal Singh, who by filing an affidavit, has stated that he took the sample from M.H.C., on September 5, 1994, seals on the sample were intact. He deposited the sample with the Laboratory on September 6, 1994 along with sample of seal and docket of the above said case. This witness has further stated that the sample remained intact when it was in his possession. To the same effect is the affidavit of MHC Beant Singh Ex. PW3/A. In such like situation, this Court feels that delay of few days, in sending the sample parcel for examination, makes no difference. Under similar circumstances, their lordships of the Supreme Court in Hardeep Singh v. State of Punjab, (2008) 8 Supreme Court Cases 557, has observed as under: CRIMINAL APPEAL NO. 96-DBA OF 1999 -8- “16. So far as the question of delay in sending the samples of opium to the Forensic Science Laboratory (FSL) is concerned, the same in our opinion has no consequence for the fact that the recovery of the said sample from the possession of the appellant stands proved and established by cogent and reliable evidence led in the trial. PW 5 has categorically stated and asserted about the recovery of opium from the possession of the appellant, which fact is also corroborated by a higher officer, namely, S.S. Mann, DSP who was also examined at length during the trial. The said recovery was effected in the presence of the said S.S. Mann, DSP, as senior police officer, who also put his seal on the said parcels of opium. 17. The then Station House Officer, Inspector Baldev Singh, who was examined as PW 1 was posted at Police Station Ajnala on the date of occurrence. He received the said samples of opium along with case material, being produced before him by PW5. It has come on evidence that Inspector Baldev Singh kept the entire case property with him till it was deposited in the office of the Chemical Examiner, Amritsar on 30-9-1997 through ASI Surinder Singh (PW 3). It has also come on evidence that till the date the parcels of sample were received by the Chemical Examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the CRIMINAL APPEAL NO. 96-DBA OF 1999 -9- possession of the appellant. In that view of the matter, delay of about 40 days in sending the samples did not and could not have caused any prejudice to the appellant. The aforesaid contention, therefore, also stands rejected.” In view of ratio of the judgment of the Hon'ble Supreme Court, argument of counsel for the respondent regarding delay in depositing the sample, with the Forensic Science Laboratory, is liable to be rejected. Furthermore, in view of the facts, as discussed earlier, non- examination of ASI Tirth Singh, to whom seal was handed over by the ASI after use, will not vitiate case of the prosecution. No doubt, parameters to interfere in a judgment of acquittal are altogether different, however, where there is misreading of evidence and acquittal is against law, the appellate Court can interfere in the judgment of acquittal. In the present case, same is the situation. The trial Court acquitted the respondent primarily on the ground of non-compliance with the provisions of Section 50 of the Act, in view of the established law,the view taken, was not justified. Consequently, this appeal is allowed and judgment under challenge is set aside. The respondent is convicted for commission of an offence punishable under Section 18 of the Act, for keeping in his possession 1.200 kilograms of opium without any permit or licence. The quantity of contraband recovered falls in between the small and the commercial quantity. There is nothing on record that after acquittal in this case, the appellant indulged himself into any other similar crime. He was 40 years of age at the time of alleged crime and now he is more than 50 years of age. Taking note of the circumstances, he is directed to undergo rigorous CRIMINAL APPEAL NO. 96-DBA OF 1999 -10- imprisonment for a period of one year and to pay a fine of Rs. 50,000/-(Fifty thousand) for offence punishable under Section 18 of the Act. In default of payment of fine, he shall further undergo rigorous imprisonment for a period of six months. The respondent be taken in custody to undergo the remaining period of sentence. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE November 19, 2009. DKC