Gurjant Singh @ Janta vs State Of Punjab

4. The case of the prosecution as projected before the trial Court was that on 04.04.1996, S.I. Darbara Singh, who was examined as P.W.6, was posted as S.H.O, Police Station, Sunam. According to him he along with A.S.I. Balbir Singh, A.S.I. Massa Singh, H.C. Bhim Sain and other police officers were present at ‘T’ point in an area of village Ugrahan in connection with Nakabandi. At about 00.15 AM, one tractor trolley was seen coming from the side of village Ugrahan. The head lights of the tractor trolley were on and P.W.6 gave a signal from his torch light and the tractor trolley was stopped by the driver. According to P.W.6, as soon as the tractor trolley was stopped, the driver who tried to slip away was overpowered by P.W.6 and other police officials. The driver stated to have revealed his name as Gurjant Singh @ Janta, the appellant herein. Thereafter, when P.W.6 checked the trolley of the tractor he found three gunny bags lying inside the trolley. P.W.6 informed the appellant that he intended to search the gunny bags as he suspected some incriminating article in the gunny bags. P.W.6 further informed the appellant that, if he so desired, the search could be conducted in the presence of a Gazetted officer or a Magistrate. The appellant stated to have expressed his consent that the search may be conducted in the presence of some Gazetted officer or a Magistrate.

5. After recording the statement of the appellant and after getting his signature attested by A.S.I Balbir Singh and A.S.I Massa Singh, P.W.6 claimed to have flashed a wireless message whereupon Baldev Singh, DSP, Sunam, who was examined as P.W.3, reached the spot. P.W.6 stated to have searched the gunny bags lying in the tractor trolley in which poppy husk was recovered. P.W.6 claimed to have drawn two samples of 250 gms from each of the gunny bag. The remaining poppy husk, which weighed to the extent of 34 kg in each of the gunny bag, was stated to have been separately sealed, while the six sample parcels were also sealed separately with the impression ‘DS’. P.W.6 also claimed to have prepared a sample seal chit separately. Tractor trolley and the case properties were taken into possession by P.W.6 through a recovery memo attested by P.W.3 as well as by A.S.I Balbir Singh and A.S.I. Massa Singh. The appellant was stated to have been arrested, and the arrest memo along with Rukka, was sent to the police station through C. Harjinder Singh, based on which an FIR was recorded by A.S.I Sukhdev Singh. After preparing the rough site plan of the place of recovery with correct marginal notes and after recording the statement of the witnesses on the same day, P.W.6 stated to have deposited the case property with the MHC with seals intact along with the sample seal.

6. The final report was thereafter stated to have been filed in the Court. Before the trial Court P.W.1 Kulwant Singh, Registration Clerk, P.W.2 A.S.I Balbir Singh, P.W.3 D.S.P. Baldev Singh, P.W.4 Harbans Singh C.No.365, P.W.5 Jaswinder Singh and P.W.6 S.I. Darbara Singh were examined and the report of the Chemical Examiner Ex.PK was also filed. When the incriminating circumstances were put to the appellant under Section 313 Cr.P.C, appellant pleaded false implication alleging that he was taken away from his house in the presence of his wife and a false case was planted on him. In defence, the appellant examined H.C. Paramjit Singh as D.W.1 Gurmail Kaur, his wife as D.W.2 and one other witness C. Avtar Singh as D.W.3.

8. The trial Court, however, took the view that there was no necessity to comply with Section 50 of the NDPS Act and on that basis did not go into the question whether P.W.3 was a competent Gazetted Officer, in order to validate the search stated to have been held in his presence. The trial Court in support of its conclusion relied upon the judgment in the case of State of Punjab vs. Balbir Singh reported in (1994) 3 SCC 299 and found the appellant guilty of the offence alleged against him and convicted him by imposing a sentence of 10 years rigorous imprisonment along with the fine of Rs.1 lac with the default clause to undergo imprisonment for one more year. In the appeal preferred by the appellant before the High Court, unfortunately, the High Court by simply extracting the concluding part of the judgment of the trial Court chose to confirm the conviction and sentence. The appellant has, therefore, come forward with this appeal.

17. On the other hand even according to the prosecution, namely, the investigating officer himself, i.e. P.W.6, a search was required after apprehending the appellant along with the tractor and the gunny bags and such search had to be necessarily conducted in accordance with Section 50 of the NDPS Act. It was further the case of the prosecution that such a step was pursued by calling upon the appellant to exercise his opinion and after affirmatively ascertaining whether he wanted any search to be conducted in the presence of the Gazetted officer, only then P.W.3 was summoned, in whose presence the search operation was held. Therefore, the conclusion of the trial Court in having held that Sections 42 and 50 were not applicable to the case on hand was a total misunderstanding of the legal provisions in the light of the facts placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified.

26. In such circumstances it will be highly dangerous to simply affirm the ultimate conclusion of the trial Court in having convicted the appellant and the sentence imposed based on such conviction, as the same was without any ratiocination. It was most unfortunate that the High Court failed to independently examine the correctness of the findings recorded by the trial Court by simply extracting a portion of the judgment of the trial Court, while affirming the conviction.

27. For all the above stated reasons, the judgment of the trial Court and the confirmation of the same by the High Court cannot be sustained. The appeal stands allowed. The conviction and sentence imposed on the appellant is set aside and the appellant shall be set at liberty forthwith, if not required in any other case.

October 28, 2013.