Crl.Appeal No.285 SB of 2000 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.285 SB of 2000 Date of decision: 23rd January, 2008 Jarnail Singh ...Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR.JUSTICE HARBANS LAL Present: Mr.A.S.Kalra, Sr.Advocate with Mr.Ramesh Sharma, Advocate for the appellant. Mr.Shilesh Gupta, DAG, Punjab *** HARBANS LAL, J. This appeal is directed against the judgment/order of sentence dated 15th January, 2000 rendered by the Court of learned Special Judge, Ludhiana whereby he convicted and sentenced the accused/appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1 lac or in default thereof, to further undergo rigorous imprisonment for six months under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'the Act'). Shorn of all unnecessary details, the prosecution version may be projected like this. On 15th July, 1998, Gurcharan Singh, Sub Inspector/ Station House Officer among other police officials including Darshan Mal, Crl.Appeal No.285 SB of 2000 [2] Assistant Sub Inspector proceeded from Police Station, Dakha in Government jeep bearing registration No.PB-25-6798 driven by Swaran Singh. Harikrishan PW came across the police party. He was associated with the said police party. When this party while approaching from the side of village Jangpur towards G.T.Road reached near railway crossing of Jangpur, the accused was spotted coming afoot from the opposite direction holding a jhola (bag) in his right hand. On catching sight of the police party, he took turn towards the ditches, which aroused suspicion in the mind of the abovementioned SHO, who intercepted the accused and told him that the bag in his hand was suspected to contain opium. He was offered to be searched before a Gazetted Officer or a Magistrate. He reposed confidence in the SHO. The consent memo Ex.PA was jotted down and it was attested by ASI Darshan Mal and Harikrishan PWs. On search of the bag, opium was recovered, out of which two samples each weighing 10 grams were drawn and converted into two separate parcels. The remainder when weighed came to 980 grams, which was also converted into a parcel. Thereafter, all the parcels were sealed with the seal bearing letters 'GS'. The seal after use was handed over to Darshan Mal, ASI. The case property was seized vide memo Ex.PB. On personal search of the accused, currency notes worth Rs. 90/-, one watch and a purse were recovered. The same were also taken into possession vide recovery memo Ex.PC. The SHO arrested the accused, prepared the rough site plan, showing the place of occurrence and sent a ruqa Ex.PF to the police station, where on its basis formal FIR Ex.PF/1 was recorded. On return to the police station, the case property was Crl.Appeal No.285 SB of 2000 [3] deposited with MHC Pargat Singh. On receipt of the Forensic Science Laboratory's report Ex.PK and after completion of the investigation, charge- sheet was laid in the Court for trial of the accused. The accused was charged under Section 18 of the Act, to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined PW1 ASI Darshan Mal, PW2 SI Gurcharan Singh, Investigator, PW3 HC Pargat Singh, PW4 Constable Randhir Singh and closed its evidence by tendering the abovementioned report of the FSL. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence and pleaded innocence. He has put-forth that “I was illegally arrested by the police of Police Station Dakha in the early hours on 15th July, 1998 from my house. I was made to sign on the blank papers by SHO of Police Station Dakha in the police station under coercion and thereafter I was falsely implicated in the above case on suspicion. No recovery has been effected form me.” He examined C-1 Jasbir Singh as DW1 and closed his defence evidence. After hearing the learned Additional Public Prosecutor, learned defence counsel and examining the evidence on the record, the learned trial Court convicted and sentenced the accused/appellant as noticed at the outset. Feeling aggrieved with the impugned judgment/order of sentence, the appellant preferred this appeal. I have heard the counsel for the parties and gone through the Crl.Appeal No.285 SB of 2000 [4] record with due care and circumspection. Mr. AS Kalra, Senior Advocate appearing on behalf of the appellant assiduously urged that a close examination of the consent memo Ex.PA would reveal that the accused was offered to be searched before a Gazetted Police Officer or a Magistrate which obviously, tantamount to partial offer, which is abhorrent to the mandatory provisions of Section 50 ibid. Mr.Shilesh Gupta, Deputy Advocate General, Punjab half heartedly argued that this offer cannot be described to be partial one. This contention has no legs to stand upon. The right of the appellant has been abridged by offering to be searched before a Gazetted Police Officer. In the language of Section 50 ibid the word “Gazetted Officer” has been employed by the Legislature. So, palpably the contents of the consent memo Ex.PA tantamount to partial offer. In re: Inderjit Singh vs. State of Haryana 1997(2) Recent Criminal Reports (Crl.), 114, the accused was given offer of search before Gazetted Officer but no offer of search before Magistrate was given. This Court was pleased to hold that this partial offer is not valid and the provisions of Section 50 ibid have not been complied with. An identical view has also been taken by this Court in re: Prem vs. State of Haryana 1997(1) Recent Criminal Reports (Crl.) 554. I also drive support from these observations in coming to the conclusion that only partial offer was made, which is in contravention with the mandatory provisions of Section 50 ibid. Of course, the recovery of opium was effected Crl.Appeal No.285 SB of 2000 [5] from the jhola (bag) but once the person of the accused is searched, it is incumbent upon the Investigator to comply with the provisions of Section 50 ibid. In case Dilip and another vs. State of M.P. 2007 (1) Recent Criminal Reports (Crl.), 586, the search of person as well as scooter of the accused was carried out. No contraband was found on personal search. The same was recovered from the scooter. The Apex Court held that in such a case, Section 50 ibid is mandatory even though compliance of Section 50 ibid was not required so far search of scooter is concerned. The next argument raised by Mr. Kalra is that as is being evidenced by the Forensic Science Report, the sample was received in the office of Forensic Science Laboratory, Chandigarh on 24th July, 1998, though, the recovery was effected on 15th July, 1998. Ostensibly, the sample was despatched after about 8 days regarding which no explanation has been furnished by the prosecution. In re: Narain vs. State of Haryana 1997(1) Recent Criminal Reports (Crl.), 414, the sample of contraband drug was taken on 17th July, 1992 but the same was handed over for analysis at the Forensic Science Laboratory on 28th July, 1992. The delay of 10 days was not explained. This Court held that such an unexplained delay causes a dent in the prosecution story. In view of these observations, the unexplained delay of 8 days here in this case too causes a dent in the prosecution story. Gurcharan Singh PW2, Investigator has testified that the seal after use was handed over to ASI Darshan Mal though, the prosecution case Crl.Appeal No.285 SB of 2000 [6] is that an independent witness Harikrishan was also with the police party. The prosecution has not given any reason for not entrusting the seal to the aforesaid independent witness. Therefore, by all probabilities, the possibility of the contents of the sample being tampered with before its despatch to the Forensic Science Laboratory cannot be ruled out. The Investigator has not apportioned any reason for handing over the seal to the official witness instead of an independent witness. ASI Darshan Mal being a police official, there could have been no difficulty for the Investigator to get back the seal from him for the purpose of tempering with the contents of the sample or the case property. In re: Sukhdev Singh alias Sukha vs. State of Punjab 2006 (1) Recent Criminal Reports (Crl.) 4, the seal was given to SI of the police and not to independent witness. The Division Bench of this Court was pleased to observe that possibility of seal being tempered with, substance being changed and the containers being resealed cannot be ruled out. For the reasons indicated above, this appeal succeeds and is accepted by setting aside the impugned judgment/order of sentence. Sequelly, the appellant is hereby acquitted of the charged offences. His bail bonds shall stand discharged. 23rd January, 2008 (HARBANS LAL) gsv JUDGE