Criminal Appeal No. 11-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 11-SB of 2000 Date of decision: January 16, 2008 Bhajan Singh alias Ghola ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. Sant Pal Singh Sidhu, Advocate for the appellant. Mr. Shilesh Gupta, DAG Punjab for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL .. HARBANS LAL, J This appeal has been directed against the judgment/order of sentence dated 16.12.1999 rendered by the Court of learned Special Judge, Ferozepur, whereby he convicted and sentenced Bhajan Singh to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,00,000/- or in default thereof, to further undergo rigorous imprisonment for 2 years under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( hereinafter referred to as 'the Act'). Shorn of all unnecessary details, the facts of the prosecution case are that on 31.1.1998, SI Major Singh, S.H.O., Police Station Mallanwala, among other police officials happened to be present at the Bridge of Semnala (Seepage Drain) in the area of Village Arifke where they Criminal Appeal No. 11-SB of 2000 2 had set up Naka in connection with patrolling and checking of anti-social elements. Meanwhile, Bhajan Singh came on an un-numbered scooter, make Bajaj Chetak from Ferozepur side, which was being driven by Sukhwinder Singh ( since deceased). Bhajan Singh was riding on the pillion of the Scooter. On suspicion, the same was made to stop. The above mentioned Sub-Inspector got suspicious of there being some intoxicant material in the scooter. He told both the accused that he wants to carry out their personal search as also of their Scooter. They were offered to be searched before a Gazetted Officer or a Magistrate. They offered to be searched before a Gazetted Officer. Their respective consent memos. were prepared. A wireless message was sent to DSP Joginder Kumar, Sub Division, Ferozepur. He along with his gunman, came at the spot around 4.00 P.M. He disclosed his identity to the accused. He asked them as to whether they wanted to be searched in his presence or in the presence of a Magistrate. By reposing confidence in D.S.P, they replied that they have no objection if their Scooter as well as their person is searched in his presence. On search of the dicky of the Scooter by the above mentioned Sub-Inspector, opium duly wrapped in a glazed paper yielded. Ten grams of opium was separated to serve as a sample. The same was converted into a parcel. The remainder, when weighed, came to 2 Kg. 990 grams which was also made into a parcel. Both the parcels were sealed with the seal 'MS'. The specimen seal impression was prepared. The seal, after use, was handed over to ASI Joginder Singh. The case property along with Scooter was seized vide separate recovery memos. On personal search of Sukhwinder Singh, currency notes worth Rs.60/- were recovered which were taken into possession. On personal search of accused Bhajan Singh, currency notes Criminal Appeal No. 11-SB of 2000 3 worth Rs.110/- were recovered. The same were also seized vide separate memo. Both the accused were arrested. On return to the Police Station, the case property was kept by the Sub-Inspector Major Singh in his own custody. On 1.2.1998, he handed over the entire case property along with the accused to ASI Joginder Singh, who after producing them before the Magistrate, along with case property, brought them back. The aforesaid Sub-Inspector kept the case property in his own custody. The accused were locked in the Police lock-up. On receipt of Chemical Examiner's Report and after competition of investigation, the charge sheet was laid in the Court for trial of the accused under Section 18 of the Act. The accused were charged under Section 18 of the Act to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 Constable Narinder Singh, PW-2 ASI Joginder Singh, PW- 3 SI Major Singh (Investigator ), PW-4 Constable Jagdish Singh, PW-5 ASI Balkar Singh, PW-6 DSP Joginder Kumar and closed its evidence. On close of the prosecution evidence, when examined under Section 313 of the Code of Criminal Procedure, Bhajan Singh alias Ghola accused denied all the incriminating circumstances appearing in the prosecution evidence against him. He has come with the plea that “ I was coming from Ferozepur City to my village. On the way near Zira gate, Sukhwinder Singh met me and I took lift on his scooter. Nothing was recovered from me. I have been falsely implicated in this case and my signatures were obtained on blank papers in the Police Station. I will lead evidence in defence. ” After hearing the learned Additional Public Prosecutor for the Criminal Appeal No. 11-SB of 2000 4 State, the learned defence counsel and examining the prosecution evidence, the learned trial Court convicted and sentenced Bhajan Singh alias Ghola as noticed at the outset. It is worth pointing out here that Sukhwinder Singh alias Chhinda, co-accused breathed his last during pendency of the case. Feeling aggrieved with the impugned judgment/order of sentence, Bhajan Singh alias Ghola has preferred this appeal. I have heard Mr. Sant Pal Singh Sidhu, Advocate, counsel for the appellant as well as the learned State counsel. Mr. Sant Pal Singh Sidhu, Advocate, on behalf of the appellant strenuously urged that as would be apparent from the Chemical Examiner's Report, Ex. P-15, the sample was received in the office on 3.3.1998 though recovery was effected on 31.1.1998. Thus, obviously the sample was sent after 30 days regarding which no satisfactory explanation has been given. He further puts that in re: Ramji Singh v. State of Haryana, 2007 (3) Recent Criminal Reports (Criminal) 452, the sample was forwarded to the Chemical Examiner after eight days of its seizure. The same was held to be fatal to the prosecution case. As against this, the learned State counsel appearing on behalf of Punjab State, maintained that the reasons for delay in reaching the sample in the office of the Chemical Examiner on 3.3.1998 have been given by Constable Narinder Singh, PW-1 as well as Constable Jagdish Singh, PW-4. As emanates from the testimony of Constable Narinder Singh, PW-1, on 4.2.1998 the S.H.O. gave him sampleof this case and after obtaining the despatch number from the office of S.S.P., he went to the office of the Assistant Chemical Examiner, Bathinda on 5.2.1998. It is in his further evidence that the Assistant Chemical Examiner did not accept the Criminal Appeal No. 11-SB of 2000 5 sample and directed him to deposit the same with the Assistant Chemical Examiner, Jalandhar and he, on his return, handed over the same along with the docket, to the S.H.O. Major Singh on 6.2.1998. Constable Jagdish Singh, PW-4 has testified that on 23.2.1998,S.H.O. Major Singh gave him sample of this case and he, after obtaining the despatch number from the office of the S.S.P., went to the office of the Assistant Chemical Examiner, Jalandhar, on 24.2.1998 and that sample could not be deposited on that date and he came back and handed over the same to the aforesaid S.H.O. and again on 2.3.1998, the S.H.O. gave the sample, Exh.P-1 to him after removing the objections and then he delivered the same in the office of the Assistant Chemical Examiner, Jalandhar on 3.3.1998. The prosecution has not given any explanation as to why the sample was not despatched during the period from 6.2.1998 till 22.2.1998. Obviously, there was a gap of 16 days. As per the standing instructions of the Narcotic Bureau Centre, the sample should be sent within 72 hours. It has been authoritatively pronounced that if the seal remained with the Police Officer, the delay beyond the said period in the despatch of sample would be fatal to the prosecution case. The possibility of the seal, the contents of the sample as well as the parcel containing the remaining bulk of opium, being tampered with during this interregnum cannot be ruled out as the seal, after use, remained with the police officer, ASI Joginder Singh. Further, SI Major Singh, PW-3 ( Investigator ) has admitted in categoric terms in his cross examination that as per Ruqa, offer was given jointly to the accused as to whether they want to be searched before a Gazetted Police Officer or a Magistrate. Obviously, the right of the accused has been abridged by offering them to be searched before a Gazetted Police Criminal Appeal No. 11-SB of 2000 6 Officer. In other words, this is a partial offer which is abhorrent to the mandatory provisions of Section 50 of the Act. It is in the statement of PW- 6 Joginder Kumar DSP under Section 161 of the Code of Criminal procedure that he got recorded that both the accused were inquired jointly as to whether they want to be searched before him or before a Magistrate. These words appearing in his statement, Exh. D-1 can be well construed to mean that partial offer of search was made to the accused which is violative of the mandatory provisions of Section 50 ibid. Of course, the recovery was effected from the dicky of the scooter. In re: Dilip and another v. State of M.P., 2007 (1) Recent Criminal Reports (Criminal) 586, the recovery was effected from the scooter. The personal search of the accused was conducted but no contraband was found. Thereafter, on search of the scooter, opium was recovered. The Apex Court ruled that in such a case, the provisions of Section 50 of the Act were required to be complied with even if the recovery was effected from the scooter. The investigator has not apportioned any reason for non-joining of an independent witness though as per prosecution story, the Police party headed by SI Major Singh had set up a Naka on the bridge of the seepage drain. So, there could could be no dearth of independent witnesses. In view of the preceding discussion, this appeal succeeds and is accepted, setting aside the impugned jugdment/order of sentence. The accused-appellant Bhajan Singh alias Ghola is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE January 16, 2008 RS