Criminal Appeal No. 805-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH *** Criminal Appeal No. 805-SB of 2000 Date of decision: January 23, 2008 Manoj Kumar alias Lucky ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. Sardeep Singh Mann, 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 30.8.2000 passed by the Court of Special Judge, Hoshiarpur, whereby he convicted and sentenced accused Manoj Kumar alias Lucky to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- and in default thereof, to further undergo rigorous imprisonment for six months under Section 20 of the Narcotic Drugs and Psychotropic Substances Act,1985 ( hereinafter to be referred to as 'the Act'). As set up by the prosecution, a Police party headed by Sub- Inspector Surinder Kumar, of Police Station Hazipur, happened to be present at Bus Stand, Hazipur on 4.1.2000. He received a secret information that Charas is being sold in a Fast Food Restaurant. Manjit Singh, PW was associated with the Police party and the raid was conducted on the aforementioned restaurant. The accused was found present holding a Criminal Appeal No. 805-SB of 2000 2 polythene bag in his right hand containing Charas. He was offered to be searched before a Gazetted Officer or a magistrate. He opted to be searched before a Gazetted Officer. His statement to this effect was recorded. A wireless message was flashed to DSP Sukhwinder Singh, Mukerian, who reached the spot. The accused along with polythene bag was produced before the D.S.P, who asked the accused to tell whether he wanted to be searched before the Gazetted Officer or a Magistrate. He reposed confidence in the D.S.P. On search of the polythene bag, Charas was recovered. When weighed, it came to 1 Kg. 400 grams, out of which ten grams was separated to serve as sample and converted into a parcel. The remainder was also made into a parcel. Thereafter, both the parcels were sealed with the seal bearing impression 'SS' and taken into possession vide recovery memo. Ruqa was sent to the Police Station, where on its basis, formal F.I.R was recorded. 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 20 of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW-1 DSP Sukhwinder Singh, PW-2 HC Harbhajan Singh, PW-3 Constable Narinder Singh, PW-4 Manjit Singh, independent witness, PW-5 ASI Gurdip Singh, PW-6 SI Surinder Kumar, PW-7 Constable Nand Lal 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. He has Criminal Appeal No. 805-SB of 2000 3 come up with the plea that he is running a shuttering shop on the ground floor and on the first floor there is only a restaurant; that his mother, brothers and other members of his family are residing in the back portion and in the half portion his younger brother is running a restaurant on the first floor; that on 4.1.2000 in the evening, he was called to the Police Station from his Shop and he was made to sit there. In his defence, he examined DW-1 Partap Singh. 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 with the judgement/order of sentence dated 30.8.2000, he has preferred this appeal. I have heard Mr. Sardeep Singh Mann, Advocate, learned counsel for the appellant as well as Mr. Shilesh Gupta, Deputy Advocate General, Punjab. Mr. Sardeep Singh Mann, Advocate, counsel for the appellant, strenuously contended that a careful perusal of the consent memo., Ex. PE would reveal that the Sub-Inspector Surinder Kumar was already aware of the contents of the polythene bag allegedly recovered from the appellant and furthermore as the contents of this document proceed, the accused was not informed of his right to be searched before a Magistrate and, thus, it is a case of partial offer, which is in contravention of the mandatory provisions of Section 50 of the Act. Mr. Shilesh Gupta, Deputy Advocate General, Punjab, could not reconcile this contention in a successful manner. The English rendering of the consent memo., Ex. PE is as under:- Criminal Appeal No. 805-SB of 2000 4 “ In the presence of the below mentioned witnesses, I ( referring to Surinder Kumar SI ) reached Fast Food Restaurant, Hazipur, where I apprehended Manoj Kumar alias Lucky with the help of my companions. . There was a polythene bag in his hand containing wicks of Charas. I asked Manoj Kumar aforesaid as to whether he wanted to give his search to a Gazetted Officer or I should carry out the same. He opted to be searched by a Gazetted Officer. By way of wireless message, DSP Mukerian was requested to come to the spot. ” Two things emerge out of this wording. Firstly, it is quite startling as to how the Investigator got knowledge about the contents of the envelope. Secondly, the accused was not offered to be searched before a Magistrate. Palpably, his right was curtailed by asking him as to whether he wanted to give his search to a Gazetted Officer. It has no where been mentioned that he was also made aware of his right to be searched before a Magistrate. Thus, the investigator acted in utter violation of the mandatory provisions of Section 50 of the Act. Further, as per Exh. PK, the sample parcel was received in the office of the Chemical Examiner on 13.1.2000 whereas the recovery was allegedly effected on 4.1.2000. Thus, manifestly the sample parcel was despatched after eight days regarding which no explanation is forthcoming on the record. As per the standing instructions of the Narcotic Bureau Centre, the sample should be sent for analysis within 72 hours. It has been authoritatively pronounced that the destpatch of sample beyond this period Criminal Appeal No. 805-SB of 2000 5 is a circumstance, which is fatal to the prosecution case. The possibility of the contents of the sample being tampered with during this interregnum cannot be ruled out. Thus, this delay caused a dent in the prosecution story. This is a case of secret information. It is in the cross- examination of SI Surinder Kumar, PW-6 that I received information at about 7.30 P.M. but the same was not reduced into writing. In view of the provisions of Section 42 (2) of the Act, he was required to put the same into black and white and to send a copy of the same to his immediate official superior within 72 hours. Thus, ostensibly he has not adhered to the mandatory provisions of the aforesaid Section. It is in the cross-examination of Sukhwinder Singh, DSP, PW-1 that “ I reached the spot within 15-20 minutes and at that time, the accused was holding the Charas in his right hand in the polythene bag and when I reached the spot, only one Fard was prepared by the S.H.O. and I had gone through the contents of the same. The Fard is the consent memo.” If the polythene bag was still in the hand of the accused, how the investigating officer came to know that the contents of the same were Charas. The contents of the envelope were required to be checked in the presence of Sukhwinder Singh, DSP, who in his further cross-examination, has stated that “ before my arrival, the S.H.O. had already known that the accused is in possession of so much Charas.” It implies that even weight of Charas was to the knowledge of the Investigating Officer before the arrival of this D.S.P. This gives an inkling that recovery was indeed not effected within the view of this D.S.P. As revealed by the documentary evidence, only the recovery memo. bear the signatures of this D.S.P. Had the recovery been effected in his presence, his attestation on other documents might have also been Criminal Appeal No. 805-SB of 2000 6 obtained. As emanates from the testimony of SI Surinder Kuamr, PW-6, C.F.S.L form was filled at the spot. If it was so, it was to be deposited with the MHC whereas the affidavit, Ex.PB of MHC with whom the case property was allegedly deposited is absolutely silent about the deposit of the C.F.S.L form with him. It is in the cross-examination of DSP Sukhwinder Singh, PW-1 that he does not know as to from where the C.F.S.L form came. In his next breath, he has stated that it is definite that I had not brought this form. This evidence cast a cloak of suspicion over the preparation of C.F.S.L form at the spot. Manjit Singh, PW-4, an independent witness was declared hostile. When he was cross-examined by the learned Additional Public Prosecutor for the State, no material favourable to the prosecution could be elicited. Thus, the evidence of the official witnesses do not find corroboration from an independent source on the record. Still worse, according to ASI Gurdip Singh, PW-5, the seals of Sub-Inspector as well as DSP were of elliptical shape whereas according to SI Surinder Kumar, PW-6, the shape of his seal was round whereas that of the D.S.P was square. In view of the foregoing discussion, it boils down that the prosecution has not been able to bring home guilt against the appellant. Consequently, this appeal succeeds and is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence. ( HARBANS LAL ) JUDGE January 23, 2008 RS