Uma Nath Singh, J.@mdashThis criminal appeal arises out of a judgment dated 31.01.1994 passed by learned Additional Sessions Judge, Patiala, in Sessions Case No. 23 of 21.10.1992, recording conviction of accused-appellant Mewa Singh u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act''), and sentencing him to undergo RI for ten years with a fine of Rs. 1,00,000/-; in default of payment of fine, to undergo further RI for a period of two years.
2. It appears that on 08.12.1991, SI Hitender Singh Ghai PW5 along with his policy party consisting of HC Inderjit Singh PW, Constable Harjit Singh (not examined) and other police officials, was present in the area of village Mehas on a canal bridge in connection with police patrol duty. He received a secret information that accused appellant Mewa Singh son of Sampuran Singh is engaged in selling poppy husk and if raided, that contraband item could be recovered from his possession. A ruga (Ex.PF) was sent to police station through C. Harjit Singh, for registration of FIR. Accordingly, FIR (Ex. PFl) was recorded by ASI Rame Shah (not examined). Thereafter, SI Hitender Singh Ghai PW5 with police party set out for the place of recovery, however, on the way, as he met Kaka Singh, a public witness PW4, near the turning of village Rohti Mouran, he also associated him. When the police party reached the canal bridge of Rohti Chhana, the accused was spotted coming from the direction of village Bhojomajri. As the accused was known to public witness Kaka Singh from before, on his pointing out, he was arrested and later interrogated. During the course of interrogation, accused Mewa Singh made a disclosure statement that he had concealed 30 bags of poppy husk under a kikar tree near village Rohti in some ditches and could get the same recovered. Statement of the accused was reduced into writing vide Ex.PA, whereon, he also affixed his thumb impressions. His statement was attested by public witness Kaka Singh PW4 and HC Inderjit Singh PW1. It appears that accused appellant Mewa Singh was also given an offer in terms of Section 50 of the Act, as to whether he wanted to be searched in presence of a Magistrate or before a Gazetted officer and he gave his consent to be searched by Police Sub Inspector Hitender Singh Ghai PW5 himself. Thereafter, the accused appellant led the police party to the spot where he had concealed the contraband item, 30 bags of poppy husk, and got the same recovered. On Weighment, each bag was found to contain 35 Kgs. of poppy husk. Thereafter, one sample of 250 grams from each bag was drawn and all the 30 samples were made into separate parcels. The residue quantity of poppy husk was put it to the same gunny bags. All the sample parcels and gunny bags were sealed on the spot with the seal of SI Hitender Singh Ghai PW5 with seal impression "HSG". Case properties relating to search and seizure were taken into possession vide recovery memo (Ex.PB) which was attested again by the sane set of witnesses, namely, HC Inderjit Singh PW1 and public witness Kaka Singh PW4. The seal of police Inspector Hitender Singh Ghai PW5 was handed over to public witness Kaka Singh PW4. Investigating Officer Hitender Singh Ghai PW5 also prepared a rough site plan (Ex.PD) with correct marginal notes and recorded the statements of prosecution witnesses on the spot. He took the accused person in custody and having returned to police station, deposited the case properties with seals intact with Moharir Head Constable Jai Gopal PW2 and the accused was lodged in police lock up. The samples were later sent to Chemical Examiner''s office for testing and on receiving a report (Ex.PH), and having completed the investigation, accused appellant Mewa Singh was challaned and sent up for trial. On the case being committed, he was tried upon by learned Special Judge who held him guilty of the offence charged with.
3. Learned counsel for the accused-appellant, Smt. Baljit Kaur, submitted that though the secret information was reduced into writing by SI Hitender Singh Ghai, Investigating Officer PW5, and on the basis thereof, a formal FIR (Ex. PFl) was recorded, but the same was not sent to any higher officer, as required under the provisions of Section 57 of the Act. This is also her submission that the case properties and the accused were not produced before a superior police officer by the Investigating Officer PW5. She further submitted that the contraband item was recovered from an open space, a land belonging to Canal Department. Moreover, public witness Kaka Singh PW4 has also stated that the said land belonged to hire and his brother. This is her further submission that public witness Kaka Singh has also stated that the accused-appellant was not known to him from before, whereas, the police proceeding indicated that on being pointed out by Kaka Singh, who claimed to have known the accused, accused Mewa Singh was taken in custody. She further submitted that a CSFL form required to be filled up for sending the samples and sample seals to Forensic Science Laboratory for chemical examination, was not filled up on the spot, but was filled up later on the date when these articles were sent to the Chemical Examiner for testing. This is also her submission that the MHC PW2 with whom the case properties were deposited and to whom the accused was handed over, did not turn in witness box and his evidence was placed only on an affidavit, which is neither attested nor verified. She further submitted that though the seal of SI Hitender Singh Ghai PW5 was given to public witness Kaka Singh PW4, but that witness has nowhere stated that the seal was handed over to him, nor the SI/SHO PW5 has mentioned the date and time when the seal was handed over to witness Kaka Singh. She furthermore submitted that instead of drawing two samples from each bag, only one sample was taken, and that the recovery was effected on 08.12.1991, whereas the samples were sent for Chemical Examination on 23.12.1991. Thus, there was an Inordinate delay of 14 days in the dispatch of the samples to FSL for testing and there is no plausible explanation for the same to be condoned. Moreover, the seal and case properties remained with SI/SHO Hitender Singh Ghai PW5, who is also the complainant in this case. Further, public witness Kaka Singh PW4 has mentioned in his evidence that though about 100 persons were present on the spot, but no other public witness was associated with the investigation. Further, the defence side produced witness Joginder Singh as DW1, who has stated that the accused was arrested from his house and not from the canal bridge.
4. On the other hand, learned Additional Advocate General, Punjab submitted that this is a case of a huge recovery of contraband item weighing 1050 Kgs. of poppy husk. The accused appellant was found in the conscious possession of said contraband, pursuant to a secret information received by the police and recorded vide the ruqa and FIR. Further, the recovery was effected only pursuant to the disclosure statement given by accused appellant Mewa Singh. Learned counsel also submitted that though there was a delay intending the samples to the Chemical Examiner, but the seals were found to be intact and there was no complaint of tampering with. This is a further submission on behalf of the State that public witness Kaka Singh P W4 has supported the prosecution case in part and he has no where stated that he did not know the accused from before. Besides, this was also submitted that the provisions of Section 57 of the Act are only directory in nature and their non-compliance did not cause a serious prejudice to the accused appellant. Similarly, taking of only one sample each from 30 bags has also not caused any prejudice to the rights of the accused.
I have carefully considered the rival submissions and perused the appeal record.
5. In his examination in-chief, HC Inderjit Singh PW has supported the prosecution case but, in his cross-examinations, he has mentioned that the case properties had been damaged and deteriorated due to heavy rains. Moreover, this is also not clear that the case properties shown to be damaged, related to this FIR. This witness has also mentioned in his cross-examinations that witness Kaka Singh was not a new face for the police and he knew witness Kaka Singh for the past two years. He has also asserted that the accused was arrested only at the instance of witness Kaka Singh PW4 and the recovery of contraband item was effected from the bank of a canal. This is also evident from his testimony that only one sample each was taken from 30 bags. He has not stated that SHO had affixed his seal on the case properties and the accused and case properties were produced before any superior officer or a Magistrate. In his cross-examinations, this witness has also admitted that though a number of people were present around the place of recovery, but none of them was associated with the proceedings of search and seizure. Though this witness seems to support the Investigating Officer PW5 in regard to investigation, but he stands vitally contradicted by the testimony of public witness Kaka Singh PW4, which only goes to support the defence submission that there are inherent serious defects in the investigation carried out by PW5 and that too under an Act which contains such provisions which provide for stringent punishment. As regards the evidence of MHC Jai Gopal PW2, he is a formal witness who has owned the contents of his affidavit (Ex.PC). In his affidavit, this witness has stated that on 08.12.1991, SHO Inspector Hitender Singh Ghai PW5 deposited the case properties, as aforesaid, alongwith samples of stamp impressions in Malkhana. Samples of stamp were handed over to Constable Jagar Singh on 23.12.1991 for depositing in the office of Chemical Examiner, Patiala. On 23.12.1991 itself, the case properties were deposited and a receipt to that effect was submitted to him. However, in his affidavit, this witness has not stated that he had entered the case properties in Register No. 19 maintained at police station. Similarly, another formal official witness Constable Jagar Singh P W3 has also admitted the contents of his affidavit (Ex.PE) to be true. Regarding the evidence of Kaka Singh PW4, in his examination-in-chief, he has mentioned that the accused was already in police custody when the sugarcane field belonging to this witness was raided by the police for alleged recovery of the contraband item and in his cross- examinations also, he has reiterated the same by saying that he had seen the accused in a Matador. Further, in his cross-examinations, this witness has clarified that the Investigating Officer had not obtained his signatures on any paper, nor had the accused put his thumb impression on any document. Only 30 seals of the SHO were affixed on the bags, and the sugarcane field wherefrom the contraband item was recovered, belonged to him and his brother. He has reiterated like HC Inderjit Singh PW1 that though around 100 persons were present on the spot, but the police had not asked any one of them to join investigation. He has also stated that he was freed from the spot by 10.00 AM. Whereas, according to PW1, statement of Kaka Singh PW4 was recorded at 1.00/1.30 P.M., and he was freed from the. spot at 2.30 P.M. Moreover, this witness has also admitted that the case properties were not produced in the Court on the date of his examination and only DDR No. 16 Ex.PD was shown to prove that the case properties were damaged. Strangely enough, despite the fact that this witness has deviated from his statement given to the police in his evidence, he was not declared hostile by the public prosecutor. Lastly, coming to evidence of Investigating Officer SHO Hitender Singh Ghai P W5, he has supported the statement of HC Inderjit Singh PW1 in material particulars. However, this is also noticed that his evidence is at variance with the testimony of public witness Kaka Singh PW4 in so far as he has stated that the accused appellant was arrested on being pointed out by Kaka Singh which witness Kaka Singh has totally denied. Investigating Officer has stated that he gave his seal to public witness Kaka Singh, but nothing like that has come in the evidence of witness Kaka Singh to corroborate this fact. Besides, witness Kaka Singh has also stated that there were about 100 persons present on or around the spot of recovery, but none of them was associated with the investigation, whereas, witness Hitender Singh Ghai PW5 has stated that the only public witness who was present on the spot was witness Kaka Singh. Even the Sarpanch or Panch or any other respectable person of the area was hot called to be associated with the proceedings of search and seizure. This witness has also stated that he had made necessary entry vide DDR No. 16 (Ex.PD) in respect of damage caused to the case properties. But, this is not clear that the said properties related to the FIR in question. Hitender Singh Ghai has admitted that the accused was not produced before a senior police officer or a Magistrate or his consent was taken in writing for search by the Investigating Officer. Needless to say that the second seal of a senior police officer on case properties is required in order to protect the rights of accused and to provide a safeguard against the cases of false implication. Hitender Singh Ghai PW5 has admitted that police station, Sadar, Nabha is situated only at a distance of 1-1/2 KM from the Judicial Complex, Nabha, yet the accused and case properties were not produced before the concerned Area Judicial Magistrate. He has also admitted that the place of recovery belonged to the Canal Department of the Government.
6. This also appears from Form 29 Ex.PH for sending the case properties to the Chemical Examiner that the recovery was effected on 08.12.1991, whereas, this Form was prepared on 23.12.1991, which is supported by the Chemical Examiner''s report which shows that the parcels were received only on that date for testing. Moreover, in the FSL report, against the column Morphine and Meconic acid, percentage of these drugs is not mentioned and only the word ''present'' is mentioned.
7. From all the aforesaid analysis of evidence on record, this is noticed that the prosecution case suffers from serious infirmities on account of non-production of accused and case properties before a senior police officer or a Magistrate. Case properties were not made available during examination of witnesses and only DDR No. 16 dated 11.07.1993, Ex.PD, was placed on record before the Court towards explanation. Sample was sent with an inordinate delay after 15 days of recovery only with the seal of Investigating Officer and there was no second seal on the case properties to ensure a safeguard against the false implication of accused appellant. Moreover, public witness Kaka Singh PW4 nowhere in his testimony, stated that he had been given the seal by SHO, after use. Place where from the recovery was effected, according to prosecution, belonged to Canal Department of the State Government and thus, it could be accessible to all. Besides, witness Kaka Singh PW4 has given a contrary version saying that the said place being a sugarcane field belonged to him and his brother. The time of recording of statement of Kaka Singh and duration of his stay at the place of recovery is also doubtful. Admittedly, the recovery was carried in day time, but no public witness was associated, .except Kaka Singh PW4 who was already known to SHO for the past two months. This is also not clear that Form No. 29 was prepared at police station and the case properties were entered in register No. 19 usually maintained at police stations. Further, there are vital contradictions as aforesaid, between the testimonies of Kaka Singh PW4 and the official witnesses including Investigating Officer Hitender Singh Ghai PW5. Moreover, provisions of Section 57 of the Act, though directory in nature and which could have lent additional support to the prosecution case, were also not complied with.
8. In view of these infirmities and the premises discussed herein above, the impugned judgment is set-aside and the Criminal Appeal is allowed. Resultantly, the accused-appellant is acquitted of charge u/s 15 of NDPS Act. Bail bonds of the accused who is informed to be on bail, thus, stand discharged.
