Criminal Appeal No. 619-SB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Criminal Appeal No. 619-SB of 2001 Date of decision : January 9, 2008 Jagir Singh Vs. State of Punjab CORAM: Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia. Present: Mr. S.P.S. Sidhu, Advocate, for the appellant. Mr. Mehardeep Singh, AAG, Punjab. K.S. Ahluwalia, J. (Oral) Jagir Singh son of Teja Singh has preferred the instant appeal for assailing his conviction and sentence. He has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as `the Act') and has been sentenced to undergo RI for ten years and to pay a fine of Rs. one lac, in default of payment of which to further undergo RI for two years. The case set out in the FIR is that on 16-7-1996 ASI Fauja Singh of CIA staff Jeera along with his companion police officials was on patrol duty, when he is said to have received a secret information that the appellant deals in poppy husk and in case a raid is conducted, heavy recovery can be effected. Accordingly he recorded a ruqqa and sent the same to police station at 11-30 AM Criminal Appeal No. 619-SB of 2001 2 and proceeded towards the spot. The accused was found present there. Before conducting raid, a message was flashed to DSP Baljinder Singh asking him to reach the spot. On interrogation the accused/appellant made a disclosure statement (Exhibit P1) under Section 27 of the Indian Evidence Act, wherein he disclosed that he had concealed five bags of poppy husk in the sand-dunes, which is only to his knowledge. In pursuance of the disclosure statement, he got recovered five bags of poppy husk, each weighing 35Kgs. The same were taken into possession vide recovery memo. Exhibit P2. It would be pertinent to mention here that both the documents i.e. Disclosure statement and the recovery memo are witnessed by HC Dalbir Singh and HC Sukhdev Singh, though they have been drawn by ASI Fauja Singh. Suffice it to say, no independent witness has been associated. After completion of investigation, challan under Section 173 Cr.P.C. was submitted. Charge was framed by the learned Additional Sessions Judge, Ferozepur, to which the appellant pleaded not-guilty and claimed trial. The prosecution examined six witnesses in all: PW1 HC Sukhdev Singh, PW 2 Constable Gurmeet Singh, PW 3 ASI Tarlok Singh, PW 4 SI Gurmit Singh, SHO, PW 5 ASI Fauja Singh and PW 6 Baljinder Singh DSP. PW 1 HC Sukhdev Singh has stated that he was accompanying ASI Fauja Singh, who is said to have received a Criminal Appeal No. 619-SB of 2001 3 secret information. The police party conducted raid on the house of Jagir Singh. An effort was made to associate some person from the public, but none was available. He has further stated that Jagir Singh was present in his house. He was intercepted and on interrogation he suffered a disclosure statement Exhibit P1. During cross-examination, he admitted that all family members of the accused and that of his brother were present in the house when the raid was conducted. He further admitted that the house of the accused is situated in abadi area. He further stated in cross- examination that the sand quarries were at an approximate distance of 8-10 acres from the house of the appellant and the people generally take sand from there. However, he stated that the place of recovery is not accessible to all and sundry. PW 2 Constable Gurmeet Singh stated that he took five samples of poppy husk to the Chemical Examiner, which had been entrusted to him. He also tendered affidavit Exhibit P6. He was cross-examined. He stated that the samples were given to him by HC Pawan Kumar. PW 3 ASI Tarlok Singh stated that since SHO Gurmit Singh had gone to appear before the Court, the case property was handed over to him and on return of the SHO, he handed over the same to him. In cross-examination, nothing incriminating could be dug out. PW 4 SI Gurmit Singh, who was SHO of the said police Criminal Appeal No. 619-SB of 2001 4 station at the relevant time, has given broad features regarding the case property and sending of samples to the Chemical Examiner. PW 5 ASI Fauja Singh is the Investigating Officer, who has given details of the prosecution case. He admitted that the accused was interrogated only in the presence of DSP Baljinder Singh ( PW6) and before that he remained silent. He admitted that there were deep pits near the place of recovery and people usually took the sand from there. He denied the suggestion that daily 50/60 trucks of sand are taken from the said quarry. However, he admitted that the place of recovery is one kilometer from village Daulewala. As stated earlier, the recovery was effected in the presence of PW 6 Baljinder Singh DSP. Statement of the accused in terms of Section 313 Cr.P.C. was recorded, wherein he pleaded false implication and has stated that he was picked up from his house. In his defence the appellant examined Constable Baljit Singh, from whom Register No. 19 was summoned. I have perused the record and heard Mr. SPS Sidhu, learned counsel for the appellant. Mr. Sidhu refers to a judgment of this Court rendered in case titled `Pall Vs. State of Punjab', 1998(1) RCR (Crl.) 902 and remedially relies upon para 10 thereof, which reads as under:- “So far as the first submission of the learned counsel for the appellant is concerned, it has considerable substance in the instant case. SI Nirmal Criminal Appeal No. 619-SB of 2001 5 Singh is said to have received the secret information about the accused-appellant selling poppy husk powder in his village and acting upon that information, he proceeded to the house of the appellant to search the premises and had also informed the DSP about it. SI Nirmal /Singh instead of waiting for a Gazetted Police Officer that is the DSP, first of all arrested the appellant and interrogated him when he is said to have suffered the disclosure statement and, therefore, the appellant led him and other members of the police party to to inside his house and recovered four gunny bags from the corner of inner house. It is relevant to note that SI NirmalSingh had no reasonable basis in law to arrest the accused at the door of his house prior to conducting of the search of his house as the accused -appellant had by that time not committed any offence. The offence would be committed when he was found in illegal, unauthorised possession of the poppy husk powder. The accused- appellant could not be legally in the custody of the Police Officer at the time when he is said to have suffered the disclosure statement. Section 27 of the Evidence Act lays down two important ingredients for its applicability and these are that the information must be received from a person accused of of any offence, in the custody of a Police Officer, and it is thereafter that in consequence of such information when any fact is deposed to as discovered, then so much of such information whether, it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved against such person. The appellant was not accused of any offence at the time when his statement was recorded by SI Nirmal Sing and he could not have been arrested because had Criminal Appeal No. 619-SB of 2001 6 had not committed any offence. Therefore, Section 27 of the Indian Evidence Act could not be availed of by SI Nirmal Singh and resultantly the alleged discovery, as a consequence of the information received from the appellant could not be made admissible under Section 27 of the Indian Evidence Act. SI Nirmal Singh, thus, could not in law bank upon the disclosure statement and consequential recovery of the four gunny bags containing poppy husk powder. It was incumbent upon the SI Nirmal Singh to ensure the presence of a Gazetted Officer/Magistrate before the search ought to have been conducted. The statement of the accused Ex.PC is of no help to the prosecution as it appears to be a mere formality completed by ASI Nirmal Singh only to show that the appellant had desired the search to be made by the SI himself and that he did not desire to be searched by the Gazetted Police Officer/Magistrate. Even the perusal of the statement Ex. PC recorded by ASI Nirmal Singh will go to show that the appellant was described as an accused. Apart from it, if the appellant himself did not desire that the search be made by a Gazetted Police Officer or a Magistrate, then there was absolutely no need for summoning the DSP Mr. Y. Singh.” There is no dispute with the proposition of law enunciated in the abvoesaid judgment. If we read the evidence of the witnesses, it has been stated that the accused was not interrogated till arrival of DSP ( PW6) Baljinder Singh. Both i.e. PW5 ASI Fauja Singh and PW 1 HC Sukhdev Singh, have stated that till arrival of the DSP, the accused remained silent. This will lead to the only inference that the disclosure statement was made after arrival of the Criminal Appeal No. 619-SB of 2001 7 DSP and thereafter the recovery was effected. Curiously enough, disclosure statement Exhibit P1 and recovery memo. Ex.P2 have not been witnessed by DSP Baljit Singh Grewal. Another aspect of the case is that five bags were recovered from the sand quarries, though it is stated that there are pits but a natural, probable convincing suggestion has been given that 8/10 acres of area which consists of sand quarries is frequently visited by many people. It has also been put to the witnesses that about 50-60 trucks carry sand from the said quarries. It can be safely inferred that the area of 8/10 acres is frequently visited by many people and is open and accessible to all and sundry. In these facts, observations of Hon'ble Supreme Court in State of Punjab Vs. Balkar Singh and another, 2004 SCC (Crl.) 838 assume importance. The entire story of the prosecution is unnatural, improbable that on receipt of the secret information when the police party visited the house, they found that the accused would be ready to be intercepted, interrogated and then suffer a disclosure statement and lead to the recovery. There are many circumstances, which suggest that the disclosure statement Exhibit P1 is a crude padding. Once the disclosure statement ( Exhibit P1) followed by recovery memo. ( Exhibit P2) are taken out of consideration, Court is left with the sole testimony of police officials. No independent witness has been joined. House of the accused is in the village abadi. Here role Criminal Appeal No. 619-SB of 2001 8 of the Investigating Officer assumes significance and observations of Hon'ble Apex Court in Balkar Singh's case (supra) are guidelines , following which the Investigating Officer should have directed his team to find from where the poppy husk was brought or to whom it belonged. The entire prosecution case is doubtful. At this stage, Mr. Sidhu embolded by the observations made by this Court, states that the appellant was granted bail by this Court after he had undergone 6 years 4 months and 8 days and as such compensation should be awarded to him. This prayer of Mr.Sidhu cannot be accepted as this Court is only extending benefit of doubt to the appellant. In view of the foregoing discussion, the appeal is accepted, conviction and sentence awarded by the Court below is set-aside and the appellant is acquitted of the charges. [Kanwaljit Singh Ahluwalia] Judge January 9, 2008. `ask'