Crl. Appeal No. 290-SB of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No. 290-SB of 2000 Date of decision, Jaunuary 8 , 2008 Jagjit Singh s/o Pargat Singh r/o Mohalla Kartar Nagar, Chaharata Distt. Amritsar. ....... Appellant Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipan Ghai, Advocate for the appellant. Mr. Sandeep Moudgil, DAG, Punjab. **** Sham Sunder, J. This appeal is directed against the judgment of conviction dated 11.3.2000, and the order of sentence of the even date, rendered by the Court of Additional Sessions Judge/Special Judge, Gurdaspur, vide which it convicted the accused (now appellant), for the offence, punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to be as the 'Act' only) and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo further simple imprisonment, for a period of two years. 2. On 11.3.1994, the police party, headed by Mangal Singh, the then Station House Officer, Police Station, Ghanie-ke-Bangar, along with other police officials, had held a picket, in the area of Village Pallowali at the bridge of Canal minor. At about 7.00 P.M., on that day, Crl. Appeal No. 290-SB of 2000 -2- four persons were seen coming, on foot, on the unmetaled path (kacha path), from the side of Village Pindi. On suspicion, Mangal Singh, Sub Inspector had directed those persons to stop and on verification, one of them disclosed his name as Jagjit Singh. Mangal Singh, Sub Inspector told Jagjit Singh, accused, that he had suspicion, that he was carrying some contraband articles. He was apprised of his right, under the provisions of law, to be searched either by himself, or in the presence of some Gazetted Police Officer. The statement of the accused was recorded, wherein, he reposed his confidence in Mangal Singh, Sub Inspector. On personal search of the accused, by Mangal Singh, Sub Inspector, from the front side pocket of the shirt worn by him, opium wrapped in a glazed paper, was recovered. 10 grams of opium was put in a separate match box which was converted into a parcel. The remaining opium weighing 240 grams, was also converted into a separate parcel. Both the parcels were sealed with the seal bearing impression 'MS'. The seal, after use, was handed over to Sub Inspector Lal Singh, and thereafter, the case property was taken into possession vide a separate recovery memo. A joint written information (ruqa) pertaining to Jagjit Singh, and other accused, was prepared, and sent to the Police Station on the basis whereof, an FIR, was registered. The site plan of the place of recovery was prepared. Jagjit Singh, accused, was arrested. The statements of the witnesses were recorded. On reaching the Police Station, the case property was deposited with Kuldeep Singh, MHC. After the completion of investigation, and on receipt of the report of the Chemical examiner, the challan was presented, against Jagjit Singh, accused in the Court. 3. On his appearance, in the Court of Judicial Magistrate, Crl. Appeal No. 290-SB of 2000 -3- Ist Class, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was committed to the Court of Sessions, charge under Section 18 of the Act , was framed against the accused, by the Additional Sessions Judge/Special Judge, Gurdaspur, to which they pleaded not guilty and claimed judicial trial. The prosecution, in support of its case, examined Lal Singh, Sub Inspector, (PW-1) recovery witness, Mangal Singh, Sub Inspector, PW-2, Investigating Officer, Palwinder Singh, (PW-3), Nirmal Singh, PW-4, a formal witness, Kuldeep Singh, Head Constable, (PW-5) and Harjit Singh, (PW-6). The report of the Chemical Examiner Ex. PG, was tendered into evidence, by the Public Prosecutor. Thereafter, he closed the prosecution evidence. 4. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. 5. In defence, the accused examined Mohinder Singh, DW-1. 6. The Additional Sessions Judge/Special Judge, Gurdaspur, convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, against the judgment of Additional Sessions Judge/Special Judge, Gurdaspur, the instant appeal was filed by Jagjit Singh, accused/appellant. 8. I have heard Sh. Bipan Ghai, Counsel for the appellant, Sh. Sandeep Moudgil, DAG, Punjab, for the respondent, and have gone through the evidence, and record of the case, carefully. 9. The learned Counsel for the appellant, at the very outset, Crl. Appeal No. 290-SB of 2000 -4- vehemently, contended that since the alleged recovery was effected from the person of the accused, as Mangal Singh, Sub Inspector had a suspicion that he was carrying some contraband, the provisions of Section 50 of the Act were applicable to the facts of the present case. He further contended that the provisions of Section 50 of the Act being mandatory in nature, the violation thereof, by the Investigating Officer, will result into the vitiation of trial. He further contended that, in the instant case, there was complete violation of the provisions of Section 50 of the Act. He further contended that offer in this case, was given to the accused, as to whether he wanted his search, to be conducted from Mangal Singh, Sub Inspector, or from a Gazetted Police Officer, and no offer was given to him, of his search, before a Magistrate. The submission of the learned Counsel for the appellant, appears to be correct. Mangal Singh, Sub Inspector, had suspicion that the accused was carrying some contraband. The recovery was effected, from the person of the accused. In these circumstances, the provisions of Section 50 of the Act ibid, were applicable to the facts of the present case. The Investigating Officer, thus, was required to give a valid offer to the accused, as to whether, he wanted to get himself searched before a Gazetted Police Officer, or a Magistrate. Since, he only gave a partial offer, to the accused, as to whether he wanted to get himself searched before himself (Mangal Singh) or before a Gazetted Police Officer, the same was a partial one. In State of Punjab Vs.Balbir Singh, 1994(1)RCR (Crl.) 737, the principle of law, laid down, was to the effect that the provisions of Section 50 of the Act are mandatory and their non-compliance must prove fatal, resulting into acquittal of the accused. In similar circumstances, in Inderjit Singh Vs. State of Haryana 1997 (2) RCR 114, reliance upon which, has been Crl. Appeal No. 290-SB of 2000 -5- placed, by the Counsel for the appellant, only a partial offer, had been given to the accused, as to whether, he wanted his search to be conducted before a Gazetted Officer, and this Court, held that such an offer, being partial, there was complete violation of the provisions of Section 50 of the Act, and the accused was entitled to acquittal. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the present case. In this view of the matter, non-compliance of the mandatory provisions of Section 50 of the Act ibid, in its entirety, must prove fatal to the case of the prosecution, and result into acquittal of the appellant/accused. The submission of the learned Counsel for the appellant, carries substance and stands accepted. 10. It was next submitted by the Counsel for the appellant that the sample, in this case, was drawn on 11.3.1994 but was sent to the Chemical Examiner on 25.4.1994 and deposited in his office on 26.4.1994 i.e. after a delay of about 45 days. He fruther submitted that no explanation was furnished, for such an inordinate delay. He also contended that no CFSL form, at the spot, was prepared and deposited with the M.H.C. and even the seal was handed over to a police official. He further contended that, under these circumstances, there was every possibility of tampering with the sample, before the same was sent to the Chemical Examiner for analyzing and as such, link evidence was not complete. This factual position, is not disputed, by the learned Counsel for the respondent. Since, the sample was sent to the office of the Chemical Examiner, after a delay of 45 days, it was incumbent upon the prosecution witnesses, to explain such a long delay. In the instant case, no explanation, was furnished by the prosecution witnesses, as to why, such a long delay was caused in sending Crl. Appeal No. 290-SB of 2000 -6- the sample to the office of the Chemical Examiner for analysis. In Gian Singh Vs. State of Punjab 2006 (2) RCR Crl. 611, relied upon by the Counsel for the appellant, the sample was sent to the Office of the Chemical Examiner after a period of 14 days and the seal remained with the Investigating Officer. In these circumstances, it was held by this Court, that the possibility of tampering with the seals of the case property, could not be ruled out, and the appellant was acquitted. In Ranjodh Singh Vs. State of Haryana 2007 (4) RCR (Criminal) 641 another authority, relied upon by the Counsel for the appellant, the sample was sent to the office of the Chemical Examiner, after 27 days. No explanation of delay, had been furnished, by the prosecution witnesses. In these circumstances, recovery was held to be doubtful, and conviction and sentence were set aside. In view of the peculiar facts and circumstances of this case, wherein, a small quantity of opium, was allegedly recovered, the submission of the learned Counsel for the appellant, that the possibility of tampering with the sample, on account of sending the same to the Chemical Examiner, after a delay of 45 days, could not be ruled out, carries substance, and is accepted. In these circumstances, the case of the prosecution becomes highly doubtful and the link evidence also becomes incomplete. Therefore, the appellant is entitled to acquittal. 11. In view of the above discussion, it is held that the impugned judgment and order are not based on the correct appreciation of evidence, and the law on the point. The same is liable to be set aside. 12. For the reasons recorded hereinbefore, the appeal is accepted, the judgment of conviction and the order of sentence dated Crl. Appeal No. 290-SB of 2000 -7- 11.3.2000, are set aside and the appellant/accused, is acquitted of the charge, framed against him. The bail bonds furnished by him stand discharged. (SHAM SUNDER) JUDGE January 8, 2008 archana