PARKASH KAUR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is an appeal against the judgment dated 8.2.2000 of the Special Judge, Patiala whereby he convicted Parkash Kaur wife of Chanan Singh under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act") and sentenced her to undergo 10 years RI and to pay a fine of Rs. 1 lac, in default to undergo RI for two years.

(2.) THE case of the prosecution is unfolded by rukka Ex.PG being sent to Police Station Sadar Nabha for registration of case through C. Karamjit Singh, on the basis of which, FIR Ex.PG/1 was recorded by Rajwinder Singh SI/SHO Police Station Sadar, Nabha. Rajwinder Singh stated that he along with ASI Sucha Singh, ASI Karamsher Singh, HC Baldev Singh, Constables Karamjit Singh and Puran Singh were present on the T point towards village Kameli and were checking regarding as to whether any bad elements were present in that area or not. Jagdev Singh alias Jagga son of Bir Singh Saini was talking to him. In the meanwhile, a motor cycle came from the side of village Udha, which was driven by an aged man and a lady was sitting behind him. The motor cycle was stopped. The woman sitting in the pillion of the motor cycle got down and tried to turn towards village Udha. On suspicion, she was stopped. The man told his name as Chanan Singh son of Teja Singh and the woman Parkash Kaur was his wife. Rajwinder Singh SI told them that he wanted to get them searched and in case they wanted to get them searched in the presence of Gazetted Officer police officer or a Magistrate, he could call any of them at the spot. They stated that they had faith in him and they do not want to get themselves searched from any officer. Separate consent statements were prepared. They put their signatures/thumb impressions on them. The witnesses signed the statement. SI Rajwinder Singh made the personal search of Parkash Kaur as per the rules. A bag, which was being carried in the right hand of Parkash Kaur, was also searched. Opium wrapped in a glazed paper was recovered from the bag. 10 grams was separated as sample. The sample was wrapped in a glazed paper and put in a tin dabbi. The remaining opium was weighed and it was found to be 1 Kg. The opium and the sample were put in the same glazed paper and thereafter sealed with the seal of "RS". A separate sample seal was prepared. Seal after its use was handed over to Jagdev Singh. The sample parcel, remaining opium and the motor cycle bearing No. PUV-6543 were then taken into possession by separate memos, which was attested by the witnesses. Grounds of arrest were supplied to both Chanan Singh and Parkash Kaur.

(3.) LEARNED counsel for the appellant has argued that as per the consent memo Ex.PC of Parkash Kaur regarding the offer of search being made to her and Parkash Kaur stating that she had full faith in Rajwinder Singh SI PW5 and he could search her is a faulty document. The consent memo Ex.PC bears the signatures of Chanan Singh and right thumb impressions of Parkash Kaur. Thus it is clear that a joint consent memo was prepared. No separate consent of Chanan Singh was taken. If it had been taken, there was no need for Chanan Singh to have signed consent memo Ex.PC. In fact document Ex.PD, the consent memo of Chanan Singh has been prepared at a later stage. On document Ex.PD only Chanan Singh has signed. There was no need for the Investigating Officer Rajwinder Singh PW5 to make two consent memos i.e. Ex.PC and Ex.PD for Chanan Singh. In document Ex.PE, the memo prepared by Rajwinder Singh PW5, it has been stated that in the presence of the witnesses, SI made the search of Parkash Kaur. This is a clear violation of Section 50 sub-section (4) of the NDPS Act. Appellant Parkash Kaur could not have been searched by a male police officer. It was incumbent upon Rajwinder Singh PW5 to summon a lady police official to search appellant Parkash Kaur. Search as per Ex.PE and in the statements of the official witnesses was the personal search of Parkash Kaur and also of the bag which she was carrying. The consent memos Ex.PC and Ex.PD are in different handwritings. The writing is not of the same person. This showed that these were prepared in the police station and not at the place of alleged recovery. Investigating Officer Rajwinder Singh SI PW5 has admitted in his statement before the Court that no special report was sent to the senior officer from the spot. Independent witness Jagdev Singh is a stamp witness. In his cross-examination, he has admitted that he was appearing in a number of cases for the police. No effort was made by the Investigating Officer to join some other independent witness apart from Jagdev Singh. No reason has been given as to the sending of the sample to the Forensic Science Laboratory on 17.4.1995 after a gap of 10 days, as the alleged recovery was made on 7.4.1995.