Criminal Appeal No. 231-DBA of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 231-DBA of 1998 Date of decision: 29.5.2008 State of Punjab .....Appellant Versus Bahadur Singh ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. D.S. Brar, Deputy Advocate General, Punjab. Mr. Kapil Aggarwal, Advocate for the respondent. S. D. ANAND, J. The State of Punjab is in appeal against the order dated 3.9.1997 vide which respondent/accused Bahadur Singh was acquitted of the charge of having been found in possession of 10 Kgs. of contraband (opium). On 5.12.1995, at about 6.30 P.M., a police party headed by SHO Rajbir Singh held a special nakabandi under the supervision of Gurmeet Singh, Superintendent of Police (Headquarter). At about 6.45 P.M., two persons including the respondent/accused were spotted coming to that side from the side of Bus Stand. On spotting the police party, one of them proceeded towards Taxi Stand; while the other attempted to turn towards Amloh Chowk. A party led by Inspector Rajbir Singh followed the Criminal Appeal No. 231-DBA of 1998 -2- **** person proceeding towards Amloh Chowk and apprehended him. It is the respondent/accused who was the person apprehended by that party. Respondent was found carrying a bag in his right hand which was suspected to contain contraband. He exercised the offered option of having the search conducted in the presence of a Gazetted Officer. That led to the requisition of Superintendent of Police, Gurmeet Singh to the spot by means of a wireless message. Under the direction of S.P. Gurmeet Singh, Inspector Rajbir Singh offered his personal search to Mohinder Singh PW and, thereafter, proceeded to search the bag carried by respondent/accused in his hand and it (bag) was found to contain opium which, on weighment, was found to be 10 Kgs. A sample of 20 grams was separated and remainder was put in a plastic bag and sealed by the Investigating Officer Rajbir Singh, with the seal of RS. The seal, after use, was entrusted to PW Mohinder Singh. The usual formalities were complied with and the challan was filed in due course. The prosecution examined as many as seven witnesses to prove the charge against the respondent/accused. PW-1 HC Hardev Singh had been entrusted with the custody of the respondent/accused for being produced in the Court of learned Sub Divisional Judicial Magistrate, Khanna, alongwith two sealed samples and one parcel (constituting the case property of that case). He produced the respondent/accused, and also the case property, before the Court. On return to the Police Station, he deposited the case property with the then AMHC PW-5 Manjit Singh on that very day. AMHC Manjit Singh afore- mentioned was examined as PW-5. PW-2 Sh. Govinder Sing Matharoo, then posted as Judicial Magistrate, Khanna, was examined to own the attribution that the case Criminal Appeal No. 231-DBA of 1998 -3- **** property, in sealed state, was produced before him on 6.12.1995 and that, he returned the same to HC Hardev Singh after putting his own initial upon the samples and case property. PW-3 Gurmeet Singh, then posted as S.P., Headquarter, Khanna, had attested the impugned recovery after he had been summoned to that place by Inspector Rajbir Singh. PW-4 Inspector Rajbir Singh is the Investigating Officer of this case. PW-6 Constable Bhupinder Singh had obtained the sealed parcel from the then AMHC Manjit Singh and delivered the same in the laboratory at Chandigarh. PW-7 Constable Dalbir Singh had delivered the special report Ex. PF/1 at the residence of iIlaqa Magistrate. The respondent/accused raised a pure and simple plea of innocence. No evidence was adduced in defence. The finding of exoneration recorded by the learned Trial Judge stems from the fact that the provisions of Sections 50 and 55 of the Narcotic Drugs and Psychotropic Act, 1985 ( hereinafter referred as to as “the Act”) had not been complied with. Reliance, in the context, was also placed upon the proceedings of a press conference held by the then SSP, in the course whereof the media was told that 20 Kgs. of opium had been recovered from Darshan Khan who had otherwise been apprehended in the company of the respondent/accused. Learned State counsel assails the line of reasoning adopted by the learned Trial Judge by arguing that the finding proceeds on perverse appreciation of evidence and on a factually incorrect premise. Learned counsel for the respondent/accused resists the view advocated on behalf of the appellant by arguing that the learned Trial Criminal Appeal No. 231-DBA of 1998 -4- **** Judge had very correctly placed reliance upon the testimony of PW-3 Gurmeet Singh, S.P. Headquarter who conceded the factum of press conference having been held by the then SSP. Khanna qua which (press conference) report Ex. PB was published in the daily Jagbani Issue dated 8.12.1995. Besides it, learned counsel also reiterated the correctness of the approach adopted by the learned Trial Judge in discarding the prosecution presentation for want of compliance with the provisions of Sections 50 and 55 of the Act. Insofar as non compliance with the provisions of Sections 50 of the Act is concerned, learned Trial Judge was unmindful of the fact that it was not a case of recovery from the personal search of an accused. The recovery had been effected from the bag which was found in possession of the respondent/accused. In case of recovery of the indicated category, the provisions of Section 50 of the Act obviously do not come into play. Insofar as the non compliance with the provisions of Section 55 of the Act is concerned, there also the learned Trial Judge is not on a firmer footing. That provision of the Act would have had applicability, if the recovery had been effected by a police official who was himself not the Investigating Officer. In the present case, it is the Station House Officer himself who headed the police party which effected the impugned recovery. He was, thus, not obliged by the provisions of Section 55 of the Act to produce the case property before the Station House Officer of the concerned Police Station. The reliance, placed by the learned counsel for the respondent/accused upon the contents of the newspaper report Ex. DB, is inappropriate for the reasons indicated hereunder:- The press conference under reference is averred to have been held by the then SSP, Khanna. He has not been examined at the Criminal Appeal No. 231-DBA of 1998 -5- **** trial. The press correspondent, to whom the interview was allegedly, given, was also not examined at the trial. Even otherwise, all that was put to PW- 3 Gurmeet Singh, SP, Headquarter was that the Daily Jagbani Jalandhar issue dated 8.12.1995 carried a report about the press conference held, in the context of the present case, by the then SSP, Khanna. The contents of the report in toto were not put to that witness. In that view of things, it is illogical to argue that fact of admission of a press conference having been held amounts to an admission with regard to the total contents thereof. It would also be pertinent to notice here that presence at the relevant time of even the respondent/accused had been averred in the press reporting. The fact of the the presence of respondent/accused Bahadur Singh at the time the the other accused came to be arrested, is noticed in Ex. DD itself. The respondent/accused and one Darshan Khan were apprehended by the police and 10 Kgs. of opium was alleged to have been recovered from the bag carried by Darshan Khan in his hand. The respondent/accused, though named in the news item, was not averred to have carried any bag containing contraband but there was an averment in the course thereof that respondent/accused ( and Darshan Khan who was separately convicted under the Act) were in the business of sale of opium and were around only for selling opium when they got apprehended. It is common ground that Darshan Khan was convicted for having been found in possession of 10 Kgs. Opium. That newspaper report does not, thus, carry, any evidentiary value so as to displace the otherwise the validly proved prosecution plea. A press report cannot be said to be substantive evidence and also a piece of evidence adequate enough to falsify a prosecution plea buttressed by substantive evidence of affirmative character adduced at the trial. PW-3 Gurmeet Singh, SP, Headquarter and PW-4 Inspector Rajbir Singh, Investigating Officer are responsible police officers. There is Criminal Appeal No. 231-DBA of 1998 -6- **** not even a word that they had any inimical inclination towards the respondent/accused. They also had no reason to divide the recovery of contraband into two just in order to implicate the respondent-accused. Inspite of the fact that the only independent witness was not examined at the trial, we find no justification to discard the deposition on oath of the official witnesses, particularly when they are found to have been able to stand thorny test of cross-examination and their credit could not be shaken or impeached in the course thereof. Learned counsel for the respondent/accused further argues that intactness of the case property from the time of recovery and till the analysis thereof (at the Laboratory ) had not been proved. The plea raised is oblivious of the categorical testimony of PW- 1 HC Hardev Singh and also PW-6 AMHC Manjit Singh. A conjunctive perusal of the testimony of those officials, further appreciated in the light of the endorsement by the Chemical Examiner would clinchingly prove the intactness of the case property for the relevant duration. This part of evidence is to be appreciated in the light of the statement made by PW-2 Sh. Govinder Singh Matharoo, the then Judicial Magistrate Ist Class, Khanna who testified to the intactness of the samples and the sealed parcel at the time it was presented before him. The opium recovered from the respondents/accused was of no mean quantity which could possibly be planted upon an innocent accused. Having said quite a few things in the preceding paras of the judgment about the validity of the impugned recovery, we would like to indicate that there is very remote possibility of the police being able to plant such a heavy recovery of contraband. We, accordingly, allow the appeal. The impugned judgment dated 3.9.1997 shall stand set aside. The respondent/accused is Criminal Appeal No. 231-DBA of 1998 -7- **** sentenced to RI for a period of ten years and to pay a fine of Rs. one lakh under Section 18 of the Narcotic Drugs and Psychotropic Act, 1985. In default of the payment of fine, he shall undergo further RI for a period of one year. ( S. D. ANAND ) JUDGE May 29, 2008 (ADARSH KUMAR GOEL) Pka JUDGE