Crl.Appeal No.938-SB of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.938-SB of 2007 Date of decision: 25.4.2011 Sujan Singh and another ... Appellants versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.G.S.Gill & Mr.A.S.Dhindsa, Advocates, for the appellants. Mr.Raja Sharma, AAG, Haryana. ... JORA SINGH, J. This is an appeal by Sujan Singh son of Puri Lal and Parhlad Singh son of Shiv Lal, appellants, to challenge the judgment of conviction dated 14.3.2007 and order of sentence dated 16.3.2007 rendered by Judge, Special Court, Kurukshetra, in Sessions Case No.206 of 2005, arising out of FIR No.311 dated 29.9.2005, PS, Shahbad, under Section 18 of Narcotic Drugs and Psychotropic Substance Act (for short, `the Act'). By the said judgment, they were convicted under Section 18 of the Act and sentenced to undergo RI for ten years and to pay a fine of Rs.1,00,000/-, in default of payment of fine, to further undergo SI for two years each. Prosecution story, in brief, is that on 29.9.2005, police party headed by SI Rajneesh Kumar was present in front of Bus Stand, Shahbad, near Petrol Pump of Surender Nath and Sharwan Kumar while on patrol duty and crime detection. In the meantime, accused were seen coming from Crl.Appeal No.938-SB of 2007 2 the side of Bus Stand, Shahbad, and crossing GT Road ,while holding a bag in their hands. One string of the bag was in the hand of one accused and second string was in the hand of second accused. On seeing the police party, they tried to flee away from the spot. On suspicion, they were apprehended and on enquiry, they disclosed their identity. IO suspected some intoxicant in the bag. Notice under Section 50 of the Act was issued to the accused as to whether they wanted search of the bag in the presence of a Gazetted Officer or a Magistrate. Then accused replied that they wanted search of the bag in the presence of a Gazetted Officer. Consent memo was prepared, which was signed by the accused and attested by the witnesses. Reply of the appellants was also signed by the witnesses. Intimation was sent to DSP, Pehowa, to reach at the spot. Effort was made to join independent witness but only Chasham Pal, resident of Mohanpur, had joined the investigation. In the meantime, DSP Mahavir Singh came at the spot. Report under Section 42 of the Act was produced before him. Same was signed by the DSP. Notice under Section 50 of the Act and reply of the accused were also produced before the DSP. DSP had signed the same. Then DSP directed the IO to search the bag carried by the accused and from the bag, some clothes were recovered. Opium wrapped in polythene was also recovered from the bag. Two samples of 50 grams each were separated and remaining opium on weighment was found to be 6.900 kgs. Samples and remaining opium were made into separate sealed parcels, sealed with the seal of IO bearing impression `RK' and of DSP bearing impression `MS'. Seal of the IO after its use was handed over to ASI Jai Narain, whereas seal of the DSP after its use was retained by him. Seal impressions of both the seals used were prepared separately. Case property was taken into police Crl.Appeal No.938-SB of 2007 3 possession vide separate memo attested by the witnesses. Ruqa was sent to the police station, on the basis of which, formal FIR was registered. Statements of the witnesses were recorded. Rough site plan with its correct marginal notes was prepared. Accused were arrested. Intimation regarding their arrest was given to their relatives. Report under Section 57 of the Act was prepared and sent to DSP, Pehowa. On return to the police station, case property was deposited with the Incharge of Malkhana. On the next day, accused along with case property was produced before the Ilaqa Magistrate. Sample parcel was deposited in the office of Chemical Examiner. As per report of Chemical Examiner, contents of sample parcel were found to be of opium. After completion of investigation, challan was presented in Court. Accused were charged under Section 18 of the Act, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 ASI Narender Singh stated that on receipt of ruqa, he had recorded FIR (Ex.PA/1). PW2 Constable Jagbir Singh stated that he had delivered special report to the Ilaqa Magistrate at 7.15 PM on 29.9.2005. PW3 HC Rajesh Kumar and PW7 Constable Kulbir Singh tendered their affidavits, Ex.PB and Ex.PH, respectively. PW4 HC Baldev Singh stated that on 30.9.2005, report under Section 57 of the Act was received. Entry was made in the register. Report was put up before DSP, Pehowa, who had signed the same. Endorsement of DSP, Pehowa, is (Ex.PC/1). PW5 DSP Mahavir Singh is one of the recovery witnesses. Crl.Appeal No.938-SB of 2007 4 PW6 Ramesh Kumar, Ahlmad of the Court of ACJM, Kurukshetra, stated that on 30.9.2005, application (Ex.PG) under Section 52-A of the Act was submitted by SI Rajneesh Kumar. Case property was also produced before the Court. After that, certificate (Ex.PG/1) was issued by the then ACJM, Kurukshetra. PW8 SI Piara Singh had partly investigated the case. He had recorded statements of the witnesses under Section 161 Cr.P.C. PW9 ASI Jai Narain is one of the recovery witnesses. PW10 SI Rajneesh Kumar is the Investigating Officer. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that nothing was recovered from them. They failed to pay illegal gratification demanded by the police. In defence, DW1 DSP Surinder Singh Bhoria stated that he had moved application (Ex.DA) for taking sample out of the residue lying deposited in the Malkhana. After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellants argued that according to story, appellants were seen while carrying bag in their hands. IO suspected some intoxicant in the bag. Then offer was given to the Crl.Appeal No.938-SB of 2007 5 appellants but offer is defective because under Section 50 of the Act, offer was not given separately to the appellants. Independent witness was with the party but seal of the IO after its use was not handed over to him. Recovery was on 29.9.2005 and on 30.9.2005, case property was produced in Court, but no reference in the affidavit of MHC that on 30.9.2005, case property was withdrawn from the Malkhana and was handed over to the IO and after production of case property in Court, again case property was re- deposited in the Malkhana. According to evidence, application (Ex.PG) was moved by the IO and as per order of the Court (Ex.PG/1), case property was ordered to be deposited in the Judicial Malkhana but against the order of the Court, case property was deposited with the Incharge of Malkhana of Police Station. As per DW1 DSP Surinder Singh Bhoria, application (Ex.DA) was moved requesting the Court for taking sample out of the residue. That means, prosecution was not sure as to whether recovery was of opium. As per PW2 Constable Jagbir Singh, special report was delivered to the Ilaqa Magistrate at 7.15 PM but as per FIR on the file, special report was handed over to Ilaqa Magistrate at 10.45 PM. Independent witness joined was not examined for the reasons best known to the prosecution. Learned State counsel argued that recovery was of 7.00 kgs opium. Appellants were from Rajasthan. Independent witness was with the party but he was given up as won over by the appellants. Order (Ex.PG/1) shows that case property was produced in Court and seals were found intact. Story is not to be ignored if seal after its use was not handed over to the independent witness. As per report of the laboratory, contents of sample parcel were found to be opium. Minor discrepancies in the statements of PWs. Discrepancies rather show that story is natural one. Crl.Appeal No.938-SB of 2007 6 First submission of learned defence counsel for the appellants was that police party was present near Petrol Pump of Surender Nath and Sharwan Kumar in front of Bus Stand, Shahbad, then sighted appellants while crossing GT Road. They were carrying one bag in their hands. One string of the bag was in the hand of one accused and second string was in the hand of second accused. On seeing the police party, they tried to flee away from the spot. On suspicion, they were apprehended. IO suspected some intoxicant in the bag. Offer under Section 50 of the Act was given to the appellants as to whether they wanted search of the bag in the presence of a Gazetted Officer or a Magistrate. But offer is defective. Offer under Section 50 of the Act should have been given to the appellants separately. After going through the evidence on the file, I am of the opinion that submission of learned defence counsel for the appellants seems to be correct one. When recovery is from bag or conveyance, then Section 50 of the Act is not applicable. Section 50 of the Act is applicable when recovery is from the person of the appellants. In case offer is given under Section 50 of the Act, then it should be given separately but in the present case, joint offer was given to the appellants. In 2008(3) RCR (Crl.) 520, Bhajan Singh @ Ghola vs. State of Punjab, recovery was of 3 kgs of opium from two accused. Joint offer was given as to whether they wanted to be searched before a Gazetted Police Officer or a Magistrate. Accused were also searched personally, but no recovery was effected from their person. Then held that mandatory provisions of Section 50 of the Act are required to be complied with. In 2008(4) RCR (Crl.) 412, Gurmit Singh and others vs. State of Haryana, recovery was from three accused. Composite notice under Crl.Appeal No.938-SB of 2007 7 Section 50 of the Act was served upon all three accused. Then observed that appellants were required to be served individually with notice under Section 50 of the Act. In the present case, recovery of 7 kgs of opium was from two appellants. Appellants were also searched personally, but joint offer was given under Section 50 of the Act. Joint offer was defective. Next submission of learned defence counsel for the appellants was that recovery was effected on 29.9.2005. After recovery, case property was deposited with the Incharge of Malkhana. On 30.9.2005, case property was withdrawn from the Malkhana for production in the Court. As per order of the Court (Ex.PG/1), case property was ordered to be deposited in Judicial Malkhana but against the order of the Court, case property was deposited with the Incharge of Malkhana of Police Station. Regarding production of case property in the Court, when Incharge of Malkhana appeared in Court, then did not state a word that on 30.9.2005, case property was withdrawn from Malkhana and was handed over to the IO for production in Court and after production of case property in Court, then again case property was redeposited with him. IO appeared as PW10 but he failed to state a word that he had withdrawn the case property from the Incharge of Malkhana for production in Court and after production in Court, then again he had redeposited the case property with the Incharge of Malkhana of Police Station and why not with the Incharge of Judicial Malkhana as per order of the Court (Ex.PG/1). After going through the evidence on the file, I am of the opinion that submission of learned defence counsel for the appellants seems to be correct one. On 29.9.2005, 7.00 kgs of opium was recovered from the appellants by the police party headed by Crl.Appeal No.938-SB of 2007 8 SI Rajneesh Kumar, who was SHO of PS, Shahbad. SI Rajneesh Kumar appeared as PW10 and stated that after completion of investigation on the spot, then he had deposited the case property with the MHC. On 30.9.2005, he had moved an application (Ex.PG) under Section 52-A of the Act. On the application (Ex.PG), order (Ex.PG/1) was passed by the Ilaqa Magistrate. IO has not stated a word that after deposit of the case property with the Incharge of Malkhana on 29.9.2005, then on 30.9.2005, he had withdrawn the case property from the Malkhana and produced the case property along with the appellants in Court. After production of case property in Court, he had redeposited the case property with the Incharge of Malkhana. No explanation was given as to why, as per order (Ex.PG/1), case property was not deposited with the Incharge of Judicial Malkhana. PW3 HC Rajesh Kumar was the Incharge of Malkhana on 29.9.2005 and 30.9.2005. He has tendered his affidavit (Ex.PB) but affidavit (Ex.PB) is silent regarding withdrawal of case property on 30.9.2005 and re-deposit of case property after production in Court. Ex.PB shows that on 29.9.2005, SI Rajneesh Kumar had deposited case property with HC Rajesh Kumar, Incharge of Malkhana. On 30.9.2005, HC Rajesh Kumar had handed over one sample parcel along with seal impression to Constable Kulbir Singh for depositing in the laboratory. In the affidavit (Ex.PB), there is not a word that on 30.9.2005, case property was withdrawn from Malkhana and was handed over to the IO for production in Court. Affidavit is also silent that after case property was produced in Court, then again case property was redeposited with him. Ex.PG is the application moved by the IO and on the application, order (Ex.PG/1) was passed by the Court. According to order Crl.Appeal No.938-SB of 2007 9 (Ex.PG/1) dated 30.9.2005, case property was ordered to be redeposited in Judicial Malkhana. As per order (Ex.PG/1), case property was not redeposited with the Incharge of Judicial Malkhana. No explanation by the IO as to why order of the Court (Ex.PG/1) was not complied with and why against the order (Ex.PG/1), case property was redeposited with the Incharge of Malkhana of Police Station. In defence, DSP Surinder Singh Bhoria appeared and stated that he had moved application (Ex.DA) requesting the Court to separate sample from the residue for sending the same to the laboratory for report. That means, prosecution was not sure as to whether recovery was of opium. If recovery was of opium and two samples, each weighing 50 grams, were withdrawn by the IO on 29.9.2005 and one of the samples was deposited in the laboratory on 30.9.2005, then why application (Ex.DA) was moved requesting the Court to draw sample from the residue for depositing in the laboratory for analysis. Recovery was effected on 29.9.2005 at 4.30 PM. After recovery, ruqa was sent, on the basis of which, formal FIR was recorded. Special report was handed over to PW2 Constable Jagbir Singh. According to PW2 Constable Jagbir Singh, he had handed over special report to Ilaqa Magistrate at 7.15 PM on 29.9.2005 but this fact is not correct one. Copy of FIR is on the file and as per endorsement by the Ilaqa Magistrate, special report (Ex.PA/1) was received at 10.45 PM. Recovery was effected on 29.9.2005 in the presence of DSP Mahavir Singh. IO stated that he had recorded the statements of the witnesses, including DSP Mahavir Singh. That means, statement of DSP Mahavir Singh was recorded on 29.9.2005, whereas PW8 SI Piara Singh Crl.Appeal No.938-SB of 2007 10 stated that on 13.11.2005, he had recorded statements of DSP Mahavir Singh and Ramesh Kumar, Ahlmad. Photocopy of statement of DSP Mahavir Singh under Section 161 Cr.P.C. is on the file but the same is dated 17.11.2005. Prosecution is not in a position to state where is the copy of statement of DSP Mahavir Singh dated 29.9.2005 or 13.11.2005. When recovery was effected in the presence of DSP Mahavir Singh, then why his statement was recorded in the month of November, 2005. Independent witness, namely, Chasham Pal, was with the party, but seal of the IO or DSP after its use was not handed over to him. As per story, seal of the IO after its use was handed over to ASI Jai Narain. No explanation why seal was not handed over to Chasham Pal. Chasham Pal was not examined to state that he was with the party and 7.00 kgs of opium was recovered from the appellants. Sample parcels were sealed and seal after its use was handed over to him. In 2008(1) RCR (Crl.) 266, State of Punjab vs. Surjit Singh, Recovery of opium from search of car driven by accused- Person of accused also searched but no recovery effected- Provisions of Section 50 of NDPS Act not complied with. A material witness not examined by prosecution being won over. Statement of an eye witness to recovery recorded under Section 161 Cr.P.C. after 3 months- Story not genuine one- Prosecution story discarded. In the present case, independent witness was with the party but seal after its use was not handed over to him. Independent witness was not examined for the reasons best known to the prosecution. As per order of Court (Ex.PG/1) dated 30.9.2005, case property was not deposited in Judicial Malkhana. Regarding production of case property in Court, story is Crl.Appeal No.938-SB of 2007 11 doubtful. As per prosecution witness, special report was handed over to Ilaqa Magistrate at 7.15 PM, whereas copy of FIR shows that special report was handed over to Ilaqa Magistrate at 10.45 PM. Application (Ex.DA) was moved by the prosecution requesting the Court to draw sample from the residue for deposit in the laboratory for analysis. In the presence of DSP Mahavir Singh, recovery was effected and his statement was recorded by the IO on the spot. Statement is not on the file. SI Piara Singh stated that statement of DSP Mahavir Singh was recorded on 13.11.2005 but copy of statement is not on the file. Copy of statement under Section 161 Cr.P.C. of DSP Mahavir Singh dated 17.11.2005 is on the file. No evidence on the file, who had recorded statement of DSP Mahavir Singh dated 17.11.2005. All this shows that possibility of tampering with the case property cannot be ruled out when prosecution witness stated that CFSL Form No.29 was not prepared on the spot. Learned defence counsel for the appellants further argued that as per story, appellants were apprehended by the IO. Under Section 50 of the Act, offer was given to the appellants. Then as per reply of the appellants, Gazetted Officer was summoned at the spot and in the presence of Gazetted Officer and independent witness, recovery was effected. Recovery memo was prepared. After recovery, ruqa was sent to the police station, on the basis of which, formal FIR was recorded. But recovery memo (Ex.PF) shows that space was not left to write FIR number. Recovery memo (Ex.PF) rather shows that FIR number was already with the party when memo was prepared. That is why, space was not left to write FIR number in the memos (Ex.PE and Ex.PE/1). Submission of learned defence counsel for the appellants seems to be reasonable one. According Crl.Appeal No.938-SB of 2007 12 to the story, police party headed by SI Rajneesh Kumar was present in front of Bus Stand, Shahbad, then had apprehended the appellants while carrying bag. IO suspected some intoxicant in the bag. Then offer was given under Section 50 of the Act. Ex.PE is the joint offer. Space was left to write FIR number. Ex.PE/1 is the reply by the appellants. Appellants opted to be searched before Gazetted Officer. While preparing Ex.PE/1, again space was left to record FIR number. After joining DSP and independent witness, recovery memo (Ex.PF) was prepared. At that time, FIR number was not with the party but while preparing recovery memo (Ex.PF), space to write FIR number was not left. That means, recovery memo (Ex.PF) was not prepared as per story. In fact, while sitting in the police station, then all the documents were prepared. No explanation by the prosecution why space was not left when recovery memo (Ex.PF) was prepared, when FIR number was not with the party. In view of all discussed above, I am of the opinion that evidence on the file was not rightly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is set aside. Appellants are acquitted of the charge levelled against them. Appeal is allowed. Appellants are in custody. Release warrant be issued forthwith. 25.4.2011 ( JORA SINGH ) pk JUDGE