-1- Criminal Appeal No. 875-SB of 2001. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No. 875-SB of 2001. Date of Decision: April 05, 2010. Chanchal Singh and another ... Appellants VERSUS State of Punjab ... Respondent CORAM : HON'BLE MR.JUSTICE MOHINDER PAL. 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. R.P. Dhir, Advocate, for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. Mr. Rakesh Kumar Aggarwal, Senior Superintendent of Police, Hoshiarpur. -.- MOHINDER PAL, J. Chanchal Singh and Balbir Ram alias Rana (appellants) have filed this appeal against the judgment of conviction and the -2- Criminal Appeal No. 875-SB of 2001. sentence order dated 11.7.2001 passed by the Special Judge, Hoshiarpur, whereby they were convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') and sentenced to undergo rigorous imprisonment for ten years and to pay Rs.1 lac, each as fine, in default whereof to undergo further rigorous imprisonment for six months. As per allegations of the prosecution, on 20.11.1998, Inspector Jaswant Singh along with Assistant Sub Inspector Ram Pal and other police officials and one Kimti Lal went in the Rakkar area of Village Bahowal. Separate police parties had been bifurcated. Efforts were made to join Gulwinder Singh, but he had shown his helplessness. One party was headed by Inspector Jaswant Singh, second party by Inspector Naresh Kumar and the third party by Sub Inspector Ravinder Singh. Inspector Jaswant Singh captured one Canter bearing registration No. DL-ILB-5260. Both the accused-appellants were occupying the said canter. Inspector Jaswant Singh asked them that they were to be searched and the search of the Canter was to be taken. The accused were given an option that they could get their search conducted before a Magistrate or a Gazetted Officer. Both the accused reposed faith in Inspector Jaswant Singh. Consent memo Exhibit P.A on which both the accused signed was prepared in this regard. It was attested by independent witness Kimti Lal. Search of the Canter was taken and twenty bags Exhibits P.1 to P.20 of poppy husk -3- Criminal Appeal No. 875-SB of 2001. were recovered. A wireless message was sent to Deputy Superintendent of Police Ajaib Singh, who reached the spot. Inspector Jaswant Singh produced the accused along with the Canter and the bags of poppy husk before the Deputy Superintendent of Police. The bags were weighed and the same came to be of 40 Kgs each. A sample weighing 250 grams was taken from each of the bag. The samples and the remaining poppy husk contained in twenty bags were separately sealed and taken into possession by the police. Rough site plan of the place of recovery was prepared. Ruqa was sent to the Police Station and on its basis formal F.I.R was registered against the accused under Section 15 of the Act. After registration of the case against the accused, they were formally arrested and memos containing grounds of their arrest were prepared. Sample parcels were sent for analysis and vide report (Exhibit P.J) of the Chemical Examiner, their contents were found to be of poppy heads. After completion of investigation and due formalities, challan was put in Court against the accused-appellants. Charge was framed against the appellants for the offence punishable under Section 15 of the Act. They did not plead guilty to the charge and claimed trial. At the trial, the prosecution examined Inspector Jaswant Singh (P.W.1), Moharrir Head Constable Vijay Singh (P.W.2), Assistant Sub Inspector Ram Pal (P.W.3), Constable Mehar -4- Criminal Appeal No. 875-SB of 2001. Singh (P.W.4) and Deputy Superintendent of Police Ajaib Singh (P.W.5). In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded false implication. Appellant Chanchal Singh further stated that when appellant Balbir Ram was going to appear in the Court of Mr.K.S. Cheema, Judicial Magistrate Ist Class, Phillaur, where a case was pending against him and he (appellant Chanchal Singh) was accompanying him, the police picked him up and involved him in this case. Similar stand was taken by appellant Balbir Ram. The accused examined Varinder Verma, Additional Ahlmad (D.W.1) The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that twenty bags, each containing 40 Kgs of poppy husk were recovered from the accused. The trial Court convicted and sentenced the appellants, as mentioned above. I have heard Mr. R.P. Dhir, Advocate, appearing for the appellants and Mr. Vishal Munjal, Additional Advocate General, Punjab, appearing for the State and have gone through the records of the case. The facts of this case, as mentioned above, disclose that there is no doubt about the fact that the accused- appellants were in conscious possession of the quantity of poppy husk recovered from their possession. -5- Criminal Appeal No. 875-SB of 2001. Learned counsel for the appellants argued that the case of the prosecution is based only on the statements of the official witnesses and the independent person, namely, Kimti Lal was not examined by the police party and was given up as having been won over by the accused. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-examination of independent witness, namely, Kimti Lal, has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. Recovery in this case was effected per chance while the police party was patrolling the area. Otherwise also, normally the independent witnesses do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The accused-appellants has also not alleged any enmity with them (police officials). In this background, merely the fact that the independent witness Kimti Lal was not examined in this case, is not a good ground -6- Criminal Appeal No. 875-SB of 2001. to discard the testimonies of the official witnesses. It is well- settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of twenty bags of poppy husk, each containing 40 kilograms of poppy husk, from the accused, which cannot be planted by the police, weighs with the argument raised by the learned counsel with regard to the non- examination of any independent witness. Learned counsel for the accused-appellant also argued that mandatory provisions of Section 50 of the Act were not complied with in this case at the time of recovery of contraband from the accused-appellants and it renders the prosecution version doubtful. According to the learned counsel, the Deputy Superintendent of Police Ajaib Singh (P.W.5), a Gazetted Officer, was summoned to the spot by Inspector Jaswant Singh (P.W.1) after recovery of bags containing poppy husk had been made from the accused by Inspector Jaswant Singh. According to the learned counsel, in this way, there was non-compliance of the mandatory provisions of Section 50 of the Act. In order to appreciate the argument of the learned counsel, a reference to the relevant provisions of Section 50 of the Act is necessary, which are as under:- “ 50. Conditions under which search of persons shall be conducted. - (1)When any officer duly -7- Criminal Appeal No. 875-SB of 2001. authorized under Section 42 is about to search any person under the provisions of Section 41, Sector 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1) (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge -8- Criminal Appeal No. 875-SB of 2001. the person but otherwise shall direct that search be made. (4) xx xx xx (5) xx xx xx (6) xx xx xx (7) xx xx xx” A perusal of the above provisions of Section 50 (1) of the Act reveals that incorporation of the words “when any officer duly authorized under Section 42 is about to search any person” therein depicts that only when personal search of any person is required to be made, the Police Officer concerned is required to apprise him of his right existing under this Section i.e as to whether he wanted to be searched before a Gazetted Officer or before a Magistrate. Such a requirement is not there when the Police Officer concerned is going to search houses, building etc. Such a view was taken by a Full Bench of this Court in the case of State of Punjab v. Kulwant Singh, 1994 (1) Recent CR 303 wherein in para 46 at page 317, it was observed as under:- “ xx xx xx. The provisions of sub- sections (1), (2) and (3) of Section 50 -9- Criminal Appeal No. 875-SB of 2001. were enacted by the Legislature in its wisdom only qua the personal search of a person and not regarding the search of houses, building etc. obviously to preserve the human dignity. There is logic behind enacting the special provisions regarding the personal search, because a person can carry only a small quantity of contraband narcotic drug or psychotropic substance. Thus, in order to rule out the possibility of planting small quantity of such drugs at the instance of unscrupulous officers of the enforcing agency and to eliminate the chances of exploitation, the above-referred substantive right has been conferred upon the suspected person. A conjunct reading of the provisions of Section 50 of the Act leaves no doubt that the Legislature did not intend to confer a distinct right upon the suspect to claim personal search before a Magistrate or Gazetted Officer and prove his innocence in recognition of the right to human dignity and free from exploitation flowing from Article 21 of the Constitution. “ The recovery of twenty bags of contraband poppy -10- Criminal Appeal No. 875-SB of 2001. husk in this case, as noticed above, was made from the Cantre. There was, thus, no violation of the mandatory provisions of Section 50 of the Act, as argued by learned counsel for the accused-appellants. In this view of the matter, as the recovery of twenty bags of poppy husk in this case, obviously, was not to be effected as a result of personal search of the accused, it is of no consequence whether the same was made before the arrival of the Gazetted Officer. Consequently, I do not find any merit in this appeal and dismiss the same. Before parting with this judgment, it may be mentioned here that both the appellants, after their release on parole, absconded. Appellant Chanchal Singh absconded while he was released on parole from the District Jail, Ludhiana whereas appellant Balbir Ram absconded after his release on parole from District Jail, Jalandhar. This Court had directed the Senior Superintendent of Police, Hoshiarpur to appear in person to explain as to what steps had been taken for the arrest of the appellants. Today, Mr. Rakesh Kumar Aggarwal, Senior Superintendent of Police, Hoshiarpur, has come present in pursuance of the orders of this Court and has stated that since the appellants had absconded from the District Jails of Ludhiana and Jalandhar, the police heads of those Districts may be directed to take necessary steps for the arrest of the appellants. I do not feel inclined to accede to this request of the Senior -11- Criminal Appeal No. 875-SB of 2001. Superintendent of Police, Hoshiarpur. Since the accused were tried by the Court of the Special Judge, Hoshiarpur, and after the dismissal of this appeal of the appellants, necessary follow up action has also to be taken by the Court at Hoshiarpur, it is expedient that the police of District Hoshiarpur takes necessary steps for the arrest of the appellants. Besides, punitive action against the sureties of the appellants has also to be initiated at Hoshiarpur. The trial Court is, accordingly, directed to take appropriate action according to law against the sureties of the appellants. April 05, 2010. ( MOHINDER PAL ) ak JUDGE