THE STATE OF PUNJAB Vs. CHUHAR SINGH

JUDGEMENT

(1.) ON 9.1.1986, police party headed by S.I. Harcharan Singh P.W. 2 was on patrol duty in the area of the village Rattian. The accused was found carrying a jhola in his right hand, by the said police party, in the area of said village and on being secured, on search opium weighing 7 kgs was found in the possession of the accused contained in the said jhola. Sample of 20 grams was prepared and sealed at the spot and a ruqqa Ex. PB was sent to the Police Station by the Investigating Officer, on the basis of which, FIR Ex.PB/1 was recorded. After due investigation of the case and preparation of the challan, Judicial Magistrate vide order dated 21.4.1987 committed the accused to face trial before the sessions Judge, Faridkot.

(2.) AFTER framing of the charge under Section 10 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called the act), the prosecution examined only two eye witnesses namely PW 1 A.S.I. Makhan Singh and PW 2 S.I. Harcharan Singh. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all incriminating evidence put to him and pleaded false implication. He did not desire to lead any evidence in defence.

(3.) A perusal of statements of the aforesaid two official witnesses undoubtedly makes it clear that the police party headed by Harcharan Singh PW 2 was on patrol duty. In that situation, it was expected that some independent witness was joined in the raiding party, particularly when the police is on duty of detecting crime in the area. Matter does not end here. The Investigating Officer has admitted that two persons riding on a motor cycle passed through the place of occurrence at the time of arrest of the accused but no efforts was made to join them. There is other evidence on record that eye witnesses are available if any serious effort was made by the investigating Officer to do so. No effort made by the investigating officer in this regard assumes importance and creates doubt as to the truthfulness of the prosecution story. Over and above this, the prosecution evidence on record does indicate that the provisions of Section 50 of the Act which are of mandatory nature have been given complete go by, by the Investigating officer during the investigation. The requirement of law is that before the accused is arrested and search is effected a right is given to the accused to be searched in the presence of a gazetted officer or a Magistrate at a nearby place. To prove its compliance the investigating officer is required to satisfy the court that such an effort was made. Ruqqa Ex. PB and spot memo Ex. Pb are conspicuous by silent in this regard. Moreover no official witness has stated so in the court as well. Hence there is no escape but to hold that the provisions of Section 50 of the Act have not been complied with.