-1- Criminal Appeal No.570-SB of 2001. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.570-SB of 2001. Date of Decision: March 15, 2010. Balkar Singh ... Appellant 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. Gur Rattan Pal Singh, Advocate, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Balkar Singh (appellant) has filed this appeal against the judgment of conviction and the sentence order dated 11.4.2001 passed by the Judge, Special Court, Patiala, whereby he was convicted under Section 15 of the Narcotic Drugs and Psychotropic -2- Criminal Appeal No.570-SB of 2001. Substances Act, 1985 (hereinafter referred to as `the Act') Act and sentenced to undergo rigorous imprisonment for ten years and to pay Rs.1 lac as fine, in default whereof to undergo further rigorous imprisonment for two years. The facts of the prosecution case, in brief, are that on 11.9.1993, Sub Inspector Gurinder Jit Singh of C.I.A Staff, Patiala, accompanied by Head Constable Surjit Singh and other police officials was going from Patiala towards Devigarh in a government vehicle for patrolling and checking of suspected persons. At that time, when the police party reached a little behind T-Point of Village Ghalori, a tractor trolley came from the opposite side i.e from the side of Village Devigarh. The appellant was driving the said tractor trolley. On seeing the police party, the appellant stopped the tractor and tried to run away. The appellant was apprehended by the police on suspicion. On interrogation, the appellant told the police that the bags lying in the tractor trolley contained poppy husk. Sub Inspector Gurinder Jit Singh apprised the accused-appellant of his right to be searched in the presence of a Magistrate or a gazetted officer. The accused reposed faith in Sub Inspector Gurinder Jit Singh and asked him to search the tractor-trolley. Consent memo in this respect was prepared. Thereafter, the tractor-trolley was searched and 50 bags, each containing 35 kilograms and 250 grams of poppy husk were recovered. 250 grams of poppy husk from each bag were taken as sample and the remaining material was packed in the same bags. The samples were sealed in separate -3- Criminal Appeal No.570-SB of 2001. parcels. The bags were separately sealed after the samples were drawn out. The sample parcels, the bags containing poppy husk along with the tractor-trolley were taken into possession vide separate recovery memos. Ruqa was sent to the Police Station, on the basis of which F.I.R was registered against the accused for the offence punishable under Section 15 of the Act. The accused was arrested after apprising him the grounds of arrest. Site plan of the place of recovery was prepared. Sub Inspector Gurinder Jit Singh deposited the case property with seals intact with Moharrir Head Constable Tej Singh. On 12.9.1993, the accused and the case property were produced before the Ilaqa Magistrate by Sub Inspector Gurinder Jit Singh. The Magistrate authenticated the intactness of the seals on the parcels of the samples and the parcels of bulk contents. Thereafter, the case property was re-deposited in the `Malkhana'. Sample parcels were sent for analysis and vide report (Exhibit P.L) of the Chemical Examiner, their contents were found to be of poppy heads. Challan was then put in Court against the accused- appellant. Charge was framed against the appellant for the offence punishable under Section 15 of the Act. He did not plead guilty to the charge and claimed trial. In order to prove its case, the prosecution examined Head Constable Tej Singh (P.W.1), Assistant Sub Inspector Piara Lal (P.W.2), Sub Inspector Baldev Singh (P.W.3), Inspector Gurinder Jit Singh (P.W.4), Head Constable Gurmail Singh (P.W.5), Constable -4- Criminal Appeal No.570-SB of 2001. Parvinder Jit Singh (P.W.6), Constable Binderjit Singh (P.W.7) and Deputy Superintendent of Police Rachpal Singh (P.W.8). Statement of the appellant was recorded under Section 313 of the Code of Criminal Procedure. He pleaded innocence and complained of his false implicity in this case. He further stated that he was illiterate. He could only sign and could not read/write Punjabi or any other language .The appellant examined Constable Harnek Singh (D.W.1) and Constable Tehal Singh (D.W.2) in his defence. The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case beyond reasonable doubt and that 50 bags, each containing 35 Kgs and 250 gms of poppy husk were recovered from the accused. The trial Court convicted and sentenced the appellant for the offence punishable under Section 15 of the Act, as mentioned above. I have heard Mr. Gur Rattan Pal Singh, Advocate, appearing for the appellant 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- appellant was in conscious possession of the quantity of poppy husk recovered from his possession. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and no independent person was joined by -5- Criminal Appeal No.570-SB of 2001. the police party. 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/non-joining of any independent witnesses 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-appellant has also not alleged any enmity with them (police officials). In this background, merely the fact that no independent witness was joined to witness the recovery, is not a good ground to discard the testimonies of the official witnesses. It has been repeatedly held that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of huge recovery of 50 bags of poppy husk, each containing 35 kilograms and 250 gms of poppy husk, from the accused, which cannot be planted by the police, weighs -6- Criminal Appeal No.570-SB of 2001. with the argument raised by the learned counsel with regard to the non-joining of any independent witness. In these circumstances, non-joining of any independent witness by the police in this case does not at all affect the veracity of the prosecution case. Learned counsel for the appellant further argued that as the case property was not produced in Court during examination of the prosecution witnesses, the link evidence in this case is incomplete. It has further been argued by the learned counsel for the appellant that recovery in this case was effected on 11.9.1993 whereas the samples were sent to the Chemical Examiner on 20.9.1993. According to the learned counsel, it casts a doubt upon the veracity of the prosecution version. Again, I do not find any merit in this argument of the learned counsel. As mentioned while narrating the facts of the prosecution case, the link evidence in this case is complete. On 12.9.1993, the accused and the case property were produced before the Ilaqa Magistrate by Sub Inspector Gurinder Jit Singh. The Magistrate authenticated the intactness of the seals on the parcels of the samples and the parcels of bulk contents. Thereafter, the case property was re-deposited in the `Malkhana'. Further, the prosecution has tendered explanation that case property could not be produced in Court during the examination of the prosecution witnesses as the same had been destroyed in fire. Thus, it was beyond the control of the prosecution to produce 50 bags of poppy husk in Court during the examination of the -7- Criminal Appeal No.570-SB of 2001. prosecution witnesses. Further, when the case property was intact as had been authenticated by the Ilaqa Magistrate, it hardly matters if the samples were sent to the Chemical Examiner on 20.9.1993. 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-appellant and it renders the prosecution version doubtful. 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 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 -8- Criminal Appeal No.570-SB of 2001. 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 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 -9- Criminal Appeal No.570-SB of 2001. 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 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, -10- Criminal Appeal No.570-SB of 2001. 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. “ There was, thus, no violation of the mandatory provisions of Section 50 of the Act, as argued by learned counsel for the accused-appellant. In this view of the matter, as the recovery of 50 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 he was apprised of his right to be searched before a Gazetted Officer or before a Magistrate or not. Consequently, I do not find any merit in this appeal and dismiss the same. March 15, 2010. ( MOHINDER PAL ) ak JUDGE