GURCHARAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS criminal appeal arises out of a judgment dated 8.12.1999 passed by the learned Addl. Sessions Judge, Bhatinda in Regular Trial No. 223 of 15.4.1998 (N.D.P.C. File No. 42 of 29.7.1994), holding the accused -Appellant guilty of an offence punishable under Section 18 of the Narcotic Drugs and Pschotropic Substances Act (hereinafter referred to as "the Act") and sentencing him to undergo 10 years' R.I. with a fine of Rs. 1,00,000/ -, or in default of payment of fine to further undergo R.I. for one year.

(2.) THE prosecution case, as set out in para No. 2 of the impugned judgment, on reproduction, reads as under:

(3.) ASSAILING the prosecution case and the judgment of conviction and sentence recorded by learned Addl. Sessions Judge, learned Counsel for the Appellant raised an eleven fold submissions. The first submission of learned Counsel for the Appellant is that the mandatory provisions of Section 50 of the Act were not complied with although the accused Appellant was carrying a tin in his hands, which contained the contraband opium and he had a legal right of being searched in the presence of a Magistrate or Gazetted Officer. Learned Counsel in support of this contention, cited five judgments of Hon'ble the Apex Court reported in (i), 1991 (1) RCR (Crl.) 736 (State of Punjab v. Balbir Singh; (ii), 1999 (3) RCR (Crl.) 533 (State of Punjab v. Baldev Singh; (iii) : (1998) 8 SCC 534 (Namdi Francis Nwazor v. Union of India and another); (iv), 1998 (4) RCR (Crl.) 513 (Guljar Singh v. State of Haryana); and , 2002 (2) RCR(Crl.) 724 (Ram Bharosi v. State of Rajasthan). Learned Counsel also cited a judgment of this Court reported in , 2004 (4) RCR (Crl.) 260 (Mohan Singh v. State of Punjab) (P&H) (FB). The second limb of the submissions of learned Counsel for the Appellant is that there was an illegal retention of the case property by Joga Singh, ASI (PW -1). According to learned Counsel, PW -1 admitted that he had not deposited the case property, including the sample, in the Malkhana and instead had kept in his custody. That apart, PW -1 has also not given any reason as to why he kept the case property and sample in his custody and failed to deposit it with Moharrir Head Constable of the Police Station for a long period of 13 days. According to learned Counsel, in every Police Station, a register known as 'Register No. 19' is maintained, which contains all such entries of the case property deposited and taken out of the Malkhana but herein there is no such entry whatsoever in that register. Learned Counsel also contended that this lapse on the part of PW -1 itself is sufficient to discard the prosecution case. Thirdly, learned Counsel submitted that there was a fatal delay in despatch of the sample to the Laboratory as it was illegally retained by PW -1 from 3.3.1994 to 16.3.1994. The sample was sent to the Laboratory through Constable Darshan Singh (PW -5) only on 16.3.1994 and again there is no explanation for such inordinate delay. Learned Counsel referred to two judgments of this Court reported in (i), 1997 (1) RCR (Crl.) 414 (Narain v. State of Haryana) and (ii), 1998 (1) RCR (Crl.) 146 (Ramesh v. State of Haryana) (P&H). In both the cases, this Court recorded acquittal also on the ground of delay in sending the sample to the Scientific Laboratory. The fourth submission of learned Counsel for the Appellant is that in the Court examination under Section 313 code of Criminal Procedure, the Appellant was not put any question on the circumstances like illegal retention of the sample by PW -1 and its delayed dispatch for chemical examination. Learned Counsel placed reliance on two judgments of this Court reported in (i), 2004 (3) RCR (Crl.) 262 (Baldev Singh v. State of Punjab) and (ii), 1996(2) RCR 235 (Shaukat Ali v. State of Haryana). In the said cases, this Court recorded acquittal as a result of absence of link evidence. The fifth submission of learned Counsel is that the prosecution case has suffered a serious set back, inasmuch as, only one sample of 10 grams of the contraband item was taken whereas, the relevant provisions mandate for taking of two samples of 25 grams each. Learned Counsel referred to a judgment of this Court in support, which is reported in, 1998 (1) RCR (Crl.) 133 (Chhabil Das v. State of Haryana). In that case also, conviction was set aside on that ground. The sixth submission of learned Counsel is that Darshan Singh, a public witness, was given up without sufficient explanation. Learned Counsel referred to two judgments of this Court to substantiate this submission. They are reported in (i), 1998 (1) RCR (Crl.) 519 (Mahi Pal Singh v. The Chandigarh Administration, Chandigarh) and (ii), 1995 (3) RCR (Crl.) 505 (Bhoolan v. State of Punjab). As per the seventh contention of learned Counsel, the seal affixed on the seizure was not handed -over to a public witness, but it was given to HC Darshan Singh, who was a member of the police party which laid the trap. Learned Counsel relied upon a judgment of this Court reported in, 1997 (3) RCR (Crl.) 351 (Surjit Singh v. State of Punjab). In that case, the accused was given benefits of doubt on that count and was acquitted. The eighth argument of learned Counsel is that a CFSL form was not prepared nor deposited with the Moharrir Head Constable. According to learned Counsel, it was necessary to prepare this form on the spot for being sent to the Forensic Science laboratory, Patiala, along with the sample. In support of this submission, learned Counsel referred to two judgments of Delhi High Court reported in (i) , 1999 (4) RCR (Crl.) 632 (Rajan Ali v. The State (Delhi Administration) and (ii), 2000 (1) RCR (Crl.) 306 (Ramesh Prakash v. State). In both the cases, conviction was set aside on that ground. Another submission of learned Counsel (being the ninth one) is that in the instant case, the complainant and the Investigating Officer are the same person. According to learned Counsel, recovery was effected by Guljar Singh, SI (PW -2) and he also sent a ruqa to the Police Station for the registration of an FIR. Learned Counsel also referred to a judgment of this Court in his support, which is reported in, 1996(2) RCR (Crl.) 707 (Risala v. State of Haryana). In that case, after considering ratio of the judgments of Hon'ble the Apex Court so also of the High Courts, learned Judge granted bail to the accused -Appellant. The tenth contention of learned Counsel is that the Investigating Officer did not offer his own search before taking search of the accused. Learned Counsel referred to a judgment of Delhi High Court reported in , 1997 (3) RCR (Crl.) 751 (Babu Khan v. State (Delhi Administration), wherein a judgment of Hon'ble the Apex Court reported in , AIR 1969 SC 58 (State of Bihar v. Kapil Singh) has also been discussed although this judgment has been rendered only in a bail case. The eleventh submission of learned Counsel is that the DSP, before whom the search was conducted, was ad ad hoc DSP and was not a regularly promoted one. According to learned Counsel, on that count also, the prosecution case appears to be infirm. Learned Counsel referred to a judgment of this Court reported in , 1997 (1) RCR (Crl.) 9 (Jagir Singh v. State of Punjab). This judgment is based on a judgment of Hon'ble the Apex Court reported in Judgments Today, 1994 (2) SC 108 (State of Punjab v. Balbir Singh). Therein also, the Court has recorded acquittal on that count.