Criminal Appeal No. 374-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 374-SB of 2001 Date of decision : February 07, 2008 Ajit Singh ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. R. P. Dhir, Advocate with Ms Simsi Dhir, Advocate for the appellant. Mr. Shilesh Gupta, Deputy Advocate General, Punjab for respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL HARBANS LAL, J This appeal has been directed against the judgment/order of sentence dated 12.03.2001 rendered by the Court of learned Special Judge, Hoshiarpur, 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.1,00,000/-and in default of payment of fine, to further undergo rigorous imprisonment for six months under Section 18 of The Narcotic Drugs and Psychotropic Substances Act, 1985 ( for brevity, 'the Act' ). As set up by the prosecution, on 7.6.2000, a Police party Criminal Appeal No. 374-SB of 2001 2 headed by ASI Sangat Singh was going in connection with general patrol duty. When the police party reached the link road of Village Pamma, the accused was spotted approaching afoot from Village Bodal. On catching sight of the police party, he turned towards Village Pamma and started urinating on the road side. On suspicion, he was nabbed by the aforesaid ASI. The ASI told the accused that he wanted to make his search. The ASI offered the accused to be searched in the presence of a Gazetted Officer or a Magistrate vide Exh. PC. The accused stated that he did not want his search to be carried out in the presence of a Gazetted Officer or a Magistrate. He reposed confidence in the ASI, who took search of the accused. On search, 110 grams of opium yielded. DSP Rajinder Singh was called. The opium along with the accused was produced before him. 10 grams of opium was separated to serve as sample. The same was converted into a parcel. The remainder was also made into a parcel. Thereafter, both the parcels were sealed with seal RS. The sample seal was also prepared. The seal, after use, was retained by DSP Rajinder Singh, who handed over the samples and the person of the accused to the aforesaid ASI, who took the sample parcels into possession vide recovery memo. Ruqa, Exh. PD was sent to the Police station. On its basis, formal FIR,Exh.PD/2 was registered. The above mentioned ASI prepared rough site plan, Exh. PE showing the place of recovery, recorded the statements of the witnesses and on return to the Police Station, deposited both the parcels with MHC Prem Singh. On receipt of chemical examiner's report and after completion of investigation, the 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. Criminal Appeal No. 374-SB of 2001 3 To bring home guilt against the accused, the prosecution examined PW1-Constable Sham Lal, PW2-DSP Rajinder Singh, PW3-ASI Sangat Singh, PW-4 Constable Gurmit Singh, PW5-MHC Prem Singh and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He did not lead evidence in defence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. I have heard Mr. R. P. Dhir, Advocate, counsel for the appellant as well as Mr. Shilesh Gupta, Deputy Advocate General, Punjab, for the State of Punjab, besides going through the record with due care and circumspection. Mr. R.P.Dhir, Advocate appearing on behalf of the appellant, urged with great eloquence that the recovery was allegedly effected on 7.6.2000,whereas the sample parcel was received in the office of the Chemical Examiner on 29.6.2000, obviously after 22 days, whereas according to the Standing Instruction No. 1/88 dated 15.3.1988 of the Narcotic Control Bureau, the sample should be sent to the Chemical Examiner within 72 hours. He further pressed into service that it is in the evidence that the seal after use was retained by DSP. It was not difficult for the Investigator to tamper with the contents of the sample parcel by getting back the seal from Rajinder Singh DSP. Criminal Appeal No. 374-SB of 2001 4 Mr. Shilesh Gupta, Deputy Advocate General, Punjab, has maintained that as per the Chemical Examiner's report, the seal of the sample was intact and agreed with the specimen seal and this documentary evidence rules out the possibility of tampering with the contents of the sample. This contention merits rejection. On appraising the examination-in-chief of Rajinder Singh DSP, it transpires that the recovery was effected in his presence, though under the stress of cross-examination, he has admitted that the recovery had already been effected from the accused before his arrival and that he had only attested the recovery memo., Exh. PB. It implies that the recovery was not effected in his presence and his examination-in-chief is nullified by his cross-examination. In re: State of Punjab v. Jaswant Singh, 2002 (3) Recent Criminal Reports (Criminal) 548, the sample was deposited with the Chemical Examiner after 21 days of recovery. The Division Bench of this Court held that this delay is fatal coupled with the fact that no independent witness was joined and the seal used for sealing the samples remained with the police officials during this period. In the instant case, it is in the cross- examination of ASI Sangat Singh, PW-3 “that many people were coming and going at the place of said raid/recovery; that I tried to join independent witnesses from those persons but none was willing to join the police party; that no action was taken against those persons.” Thus, it is deducible from this evidence that independent witness though available was not joined. If such witnesses had refused to join investigation, the action ought to have been initiated against that person. In view of these circumstances, the delay in sending the sample to the Chemical Examiner is fatal to the prosecution Criminal Appeal No. 374-SB of 2001 5 case. Mr. Dhir further maintained that it is in the cross-examination of ASI Sangat Singh,PW-3 that SI Ravinder Singh was the S.H.O. at that time; that no case property was produced before him for the affixation of the seal on the case property and this clearly goes to show that the provisions of Section 55 of the Act have been given a go-by. Mr. Gupta could not controvert this submission in any manner. Statutorily speaking, it was obligatory upon the Investigator to produce the case property along with the accused before the concerned S.H.O. for the purpose of verification. The above extracted evidence leaves no room for doubt that the accused along with the case property was not produced before SI Ravinder Singh, S.H.O. Thus, obviously the provisions of Section 55 of the Act, though directory in nature, have not been complied with. This non-compliance has caused prejudice to the accused. Mr. Dhir further pressed into service that as would be apparent from Exh. PC, the alleged consent memo., the same is in question-answer form which is not in conformity with the provisions of section 50 of the Act, and, thus, the mandatory provisions of the said Section have not been adhered to. Mr. Gupta submitted that as per the contents of this document, the accused was offered to be searched before a Gazetted Officer or a Magistrate and, thus ostensibly, the provisions of Section 50 ibid have been complied with. I am unable to subscribe myself to this submission for the discussion to follow hereunder. The English rendering of the relevant portion of the contents of Exh. PC is as under :- Criminal Appeal No. 374-SB of 2001 6 (1) Question - Do you want to be searched by a Gazetted Officer or a Magistrate ? Answer - No (2) Question - Can I make your personal search ? Answer - Yes It is manifestly clear from the above Question/Answer that firstly, the accused was not told that he was suspected to be in possession of some contraband and his search is to be carried out; secondly, he has not been informed of his right to be searched before a Gazetted Officer or a Magistrate. The question has been put to him as to whether he wants his personal search to be made through a Gazetted Officer or a magistrate. He should have been apprised that he has got the right to be searched in the presence of a Gazetted Officer or a Magistrate. Thus, the contents of Exh. PC do not fulfill the requisite ingredients of Section 50 ibid. In view of the above discussion, this appeal is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE February 07, 2008 RS Whether to be referred to the Reporter ? Yes/No