Dr.
ARIJIT
PASAYAT,J.
Challenge in this appeal is to the judgment of a Division bench of
Punjab and Haryana High Court directing acquittal of the respondent who was
convicted by learned Special Judge Sh. Inderjit Kaushik, Patiala, for offence
punishable under Sec.15 of the Narcotic Drugs and Psychotic Substances
Act, 1985 (in short `NDPS Act'). Allegation against the accused was that he
was found to be in possession of poppy husk weighing a large quantity in
seven bags.
The prosecution version in a nut shell is as follows:
On February 20, 1999 Sub-Inspector Ajmer Singh (PW.5), along with
other police officials, was on patrol duty in police vehicle PB-11A-7849 driven
by Sarmukh Singh. The patrol party was present at the bridge on a drain
about 20- kms. South of Police Station, Sadar, Patiala. At 7 a.m. secret
information was received by Sub-Inspector Ajmer Singh that
Leela and his co-accused Pritam Singh @ Billu (proclaimed offender) were
habitually selling poppy husk and in case a raid was conducted they could both the apprehended red handed from near the bridge over the drain in
Bhanri.
The Investigator proceeded to the spot and also informed D.S.P.
Kulshinder Singh (PW.1) on the wireless. When the police officials reached
the bridge on the drain, they saw two persons sitting on bags, who on seeing
them tried to run away. The police officials stopped their vehicle, got down
and over-powered Leela as well as Pritam Singh @ Billu. At that time Joga
Singh had also reached at the spot. The Investigator told the accused that he
wished to search the bags and that search could be conducted in the
presence of a Gazetted Officer or a Magistrate. The accused opted for search
before a Gazetted Officer. The Investigator recorded their consent statements
and the accused put their signatures on the statements. In the meanwhile,
D.S.P. Kulshinder Singh (PW.1) also reached the spot in a police Gypsy. In
the presence of the witnesses and the D.S.P., the Investigator checked the
seven bags which were lying on the ground and from each bag poppy husk
was recovered. The bags were numbered 1 to 7. Two samples of 250 grams
each of the contraband article were taken out from the bags and put in
separate parcels. The remaining poppy husk was weighed and each was
found to have contained 34.5 kgs. of poppy husk. Fourteen sample parcels
and the seven bags of poppy husk were sealed. The seal after
use was handed over to Assistant Sub-Inspector Mohinder Singh (PW.4).
Since Leela and Pritam Singh @ Billu had committed an offence punishable
under Section 15 of the NDPS Act report was sent to Police Station, Sadar,
Patiala at 9.30 a.m. and on its basis formal F.I.R. was registered at the Police
Station at 10.40 a.m. on February 20, 1999. Report of the case was received by
Additional Chief Judicial Magistrate at 5.35 p.m. on the same day.
In the meanwhile, the Investigator arrested the accused and took into possession the case property. On the personal search of the accused
some cash was recovered, Rs.65/- from Leela and Rs.95/- from Pritam Singh
@ Billu. Cash was also taken into possession. The accused were informed of
the grounds of their arrest vide memo signed by Assistant Sub-Inspector
Mohinder Singh (PW.4) and Joga Singh. Site plan of the place of the
occurrence was prepared.
On return to the police station, case property and the accused were
produced before S.H.O. Gurchain Singh (PW.6) who verified the facts and
directed the Investigator to deposit the case property with the M.H.C.
On the following day the accused as well as the case property were
produced before the Area Magistrate. The sample of the recovered
contraband was examined by the Chemical Examiner who reported that the
sample was of poppy husk. After completion of the investigation the accused
were sent up for trial. At some stage Pritam Singh was released on bail and
he
jumped bail. The record is unclear regarding the date of his release and the
order on the basis of which he was released. Be that as it may, efforts were
made to procure Pritam Singh's presence by the Court but without success.
Consequently, Pritam Singh @ Billu was declared a proclaimed offender by
the learned Special Judge on September 1, 2001.
Charges were framed against Leela on September 6, 2001 to which
he pleaded not guilty and claimed to be tried.
Prosecution examined the DSP -Kulshinder Singh (PW.1), C. Faquir
Chand (PW-2), MHC Sahib Singh (PW.3), ASI-Mohinder Singh (PW.4) and SI-
Ajmer Singh (PW.5) and Gurchain Singh (PW.6), SHO, Patiala police station.
The accused denied various items of prosecution evidence which appeared
against them and pleaded false implication.
The accused examined A.S.I. Devinder Singh (DW.1), Joga Singh (DW.2). The trial Court came to the conclusion that the accused was believed
to be in possession of seven bags of contraband therefore he was convicted
and sentenced to undergo 11 years R.I. and to pay a fine of Rs.1,00,000. In
appeal two stands were basically taken. First was that there was no
independent witness examined and secondly there was violation of the
provisions of Sec.50. It was found that two bags were torn and so far as the
other five bags are concerned the seals were smudged. The High Court
accepted the stand of the accused and directed acquittal.
In support of the appeal, learned counsel submitted that the fact that
no independent witness was examined on account of that one Joga Singh
who was called to be a witness of the recovery was non-available and was not
examined. There is no legal bar on conviction being recorded solely on the
evidence of the witnesses. Additionally, the seized articles in questions were
put by the Deputy Superintendent of Police (PW 1) who was higher in rank to
the officer who was the SHO at the relevant point of time. In any
event as noted in the High Court's judgment the SHO was one Gurchain Singh
who is stated in the High Court judgment as DSP. It is to be noted that there
is perverse for which seals of two officers is required to be given under
Sec.55. The investigator has ensured that there is more than transparency in
the action taken and there is no apprehension or any imperfect procedure
being adopted.
Learned counsel for the respondent on the other hand submitted
that there has been clear violation of Sec.55 of the Act and no serious effort
was made to involve any independent witness and on the other hand Joga
Singh who was made a member of the party did not support the prosecution
version.
It is not in dispute that provision of Sec. 55 are directory in nature.
In the instant case, the DSP who was examined as PW.1 is an officer and was
higher in rank or of
the same rank as the SHO in the instant case. There is no reason indicated as
to how the accused has been prejudiced by PW.1 putting his seal instead of the SHO. The provisions are directory and as there is no doubt about the
authenticity of the official Act, the High Court ought not to have held that
there was non-compliance of requirement of Sec. 50. Coming to the plea as
confined to the conclusion that officer witnessed were examined in the Court
the conviction could not be maintained. Firstly Sec.50 of the Act has no
application as there was o personal search. The issue has been examined in
several cases and it has been held that clearly shows that the official
witnesses have been examined. It is not sufficient to be doubt the evidence
of the official witnesses. The elementary question is whether the evidence of
official witness suffers from any infirmity. In the instant case there is no
finding in that regard. Coming to the plea of the respondent accused that the
seals were found smudged, it is to be noted that the trial Court has noticed
this aspect and held that they were produced before the Court after one year
and by the time of production there is likelihood the seal getting protection or
get smudged.
Above being the position, the acquittal of the respondent by the High
Court is clearly unsustainable. The judgment of the High Court is set aside
and that of the trial court is restored. The respondent shall surrender to
custody to serve out the remainder of sentence.
The appeal is disposed of.
(ASOK KUMAR GANGULY) New Delhi, April 23, 2009.