Jora Singh, J.@mdashState of Haryana through Public Prosecutor has filed this application u/s 378(3) Cr.P.C. for grant of leave against the judgment of acquittal dated 7.8.2009 passed by Special Judge, Jind, arising out of FIR No. 96 dated 23.2.2008 u/s 21 of NDPS Act (for short `the Act''). By the said judgment, Hari Dass alias Lindu son of Lohri and Poras son of Ram Niwas, both residents of Ram Rai Gate, Jind, were acquitted of the charge levelled against them.
2. Prosecution story, in brief, is that on 23.2.2008, police party headed by SI Jagmal Singh while present near Meat Market, Jind, received secret information to the effect that:
Hari Dass alias Lindu son of Lohri and Poras son of Ram Niwas, both residents of Ram Rai Gate, Jind, are dealing in the sale of smack. At present they are selling smack while present on the bank of Hansi branch canal towards Jind. In case there is a raid, they can be caught red handed while selling smack.
3. Believing the information to be credible, Rajinder Parshad, Naib Tehsildar, was informed through mobile phone to reach Meat Market, Jind, and after joining him, police party reached near Bansi branch canal. Two boys were found sitting on the bank of canal. On seeing the police party, they tried to run away. On suspicion, they were apprehended. Both the boys were carrying plastic bags in their hands. On enquiry, one of them disclosed his name as Hari Dass alias Lindu and the second as Poras. Investigating Officer suspected some intoxicant in the plastic bags. So, an offer u/s 50 of the Act was given to the accused as to whether they wanted to be searched before any Gazetted Officer or Magistrate. Reply by the accused was that they wanted to be searched in the presence of Gazetted Officer. In the presence of Naib Tehsildar, Hari Dass was searched and smack was recovered from the plastic bag carried by him. Two samples, each weighing 5 grams, were separated to serve a sample, and remaining smack on weighment was found to be 35 grams. On search of plastic bag carried by second accused Poras, 15 grams smack was recovered. Samples and remaining smack were separately sealed by the Investigating Officer with his own seal bearing impression `JS''. Seal after its use was handed over to HC Ravinder Kumar, after preserving the specimen seal. Sealed parcels were also sealed by Rajinder Singh, Naib Tehsildar, with his own seal bearing impression `RP'' , and seal after its use was retained by him. Ruqa was sent to the Police Station, on the basis of which, formal FIR was recorded.
4. After completion of investigation, challan was presented in the Court. Accused were charged u/s 21 of the Act, to which they pleaded not guilty and claimed trial.
5. In order to substantiate its case, prosecution examined PW1 ASI Ranbir Singh, who tendered his affidavit (Ex.PA).
6. PW2 EHC Satyavir Singh stated that he identified the signatures of Rajinder Singh, DSP, HQ, Jind, on the report u/s 57 of the Act (Ex.PC).
7. PW3 Sanjay Kumar tendered his affidavit (Ex.PD).
8. PW4 ASI Bani Singh stated that on receipt of ruqa, formal FIR (Ex.PE) was recorded.
9. PW5 Inspector Rakam Singh stated that on 23.2.2008, he was posted as SHO, PS City, Jind. On that day, SI Jagmal Singh had produced the accused along with case property before him. After verifying the factum of recovery, he had affixed his own seal bearing impression `RS'' on the sealed parcels. Report u/s 57 of the Act was prepared and sent to DSP, Jind. After completion of investigation, he prepared report u/s 173 Cr.P.C. on 27.5.2008.
10. PW6 Constable Subhash Chander tendered his affidavit (Ex.PG).
11. PW7 HC Satish Kumar stated that on 23.2.2008, he had delivered special report to the Ilaqa Magistrate.
12. PW8 Rajinder Parshad stated that on 23.2.2008, he was summoned by SI Jagmal Singh. On the request of SI Jagmal Singh, he had gone to Meat Market, Jind. He was with the police party headed by SI Jagmal Singh, Investigating Officer, and stated how smack was recovered from the accused.
13. PW9 HC Ravinder Kumar is one of the recovery witnesses. He was also with the Investigating Officer and deposed regarding recovery of smack from the accused.
14. PW10 SI Jagmal Singh is the Investigating Officer. He has also supported the prosecution story as to how recovery was effected from the accused.
15. PW11 Ms. Vivek Bharti stated that on 24.2.2008, she was posted as Duty Magistratye-cum-Addl. Chief Judicial Magistrate, Jind. Application (Ex.PK) was moved by SI Jagmal Singh. One packet having 35 grams smack was produced before her. After certifying the correctness of inventory report, order (Ex.PK/1) was passed.
16. After close of the prosecution evidence, statements of the accused were recorded u/s 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent.
17. After hearing learned Public Prosecutor for the State, defence counsel for the respondents-accused and from the perusal of evidence on the file, respondents-accused were acquitted of the charge levelled against them.
18. We have heard learned State counsel and gone through the evidence on the file.
19. Learned State counsel argued that evidence on the file was not properly scrutinized. Respondents-accused were acquitted of the charge levelled against them on the allegation that offer u/s 50 of the Act was partial. No independent witness was joined and statements of the witnesses are contradictory.
20. As per prosecution story, police party headed by SI Jagmal Singh on 23.2.2008 was present near Meat Market, Jind, then received secret information but secret information was not reduced into writing and was not sent to the higher police officer. Secret information was received when party was near Meat Market, Jind. Number of independent witnesses were present, but no explanation why the Investigating Officer did not join any one.
21. As per secret information, raid was conducted. Both the respondents-accused were sighted while carrying plastic envelopes. 45 grams smack was recovered from Hari Dass and 15 grams smack from Poras. Before search of the accused, offer was given as to whether they wanted to be searched before any Gazetted Officer or a Magistrate.
22. HC Ravinder Singh while appearing as PW9 stated that on personal search of the respondents-accused, smack was recovered. When recovery of intoxicant is from the person of the accused, then offer is to be given as to whether they wanted to be searched before any Gazetted Offier or Magistrate, but in the present case, partial offer was given, i.e., whether the accused wanted to be searched in the presence of Gazetted Officer. Learned State counsel failed to convince how partial offer is valid when recovery is from the person of the accused. Something could be said if recovery would have been from the bag or conveyance. Section 50 of the Act is mandatory. When there is non-compliance of Section 50 of the Act, then on this short ground prosecution story is to be ignored.
23. Prosecution has examined official witnesses, but their statements are contradictory. Rajinder Parshad, Naib Tehsildar, stated that writing work was done in the light of gypsy, whereas HC Ravinder Kumar stated that writing work was done with the help of search light. Investigating Officer stated that writing work was done with the help of torch. Rajinder Parshad stated that writing work was done while sitting on the bank of Hansi branch canal, but HC Ravinder Kumar stated that writing work was done while sitting in the gypsy. SI Jagmal Singh, Investigating Officer, stated that number of persons were available on the spot and an effort was made to join independent witness but no one was ready to join. But he failed to give name of any person. If Investigating Officer had requested anyone to join the investigation and the independent witnesses present on the spot had refused to join, then action should have been taken by the Investigating Officer. At least names of the persons, who were requested to join the party, should have been mentioned in the case diary. Contrary to the statement of Investigating Officer, HC Ravinder Kumar stated that Investigating Officer did not request any independent witness to join the investigation. There were number of shops and the shops were open. Number of persons were available in the market. So from the statements of the official witnesses, one thing is clear that there were number of shops and the shops were open. No one was joined the investigation of the case. If any one had refused to join investigation, then at least a note should have been given in the case diary, but no note in the case diary. So, prosecution story regarding joining of independent witness is not natural one.
24. As discussed earlier, two samples, each weighing 5 grams, were separated, whereas as per report of the laboratory, weight of the sample was found to be 2.2 grams. When 5 grams smack was separated to serve a sample, then question is how the weight of the sample was found to be 2.2 grams. No explanation how the weight of the sample was decreased from 5.00 grams to 2.2 grams. So possibility of tampering of case property cannot be ruled out, when seal was not handed over to any independent witness.
25. Recovery was effected on 23.2.2008, whereas sample parcel was deposited in the office of FSL, Madhuban, on 17.4.2008. There is a delay in sending the sample parcel to the office of FSL, Madhuban. Delay creates a doubt in the prosecution story, particularly when weight of sample was found to be 2.2 grams, when the sample separated was of 5.00 grams.
26. All discussed above shows that evidence on the file was rightly scrutinized by the Special Judge, therefore, we do not find any ground to grant the leave to file appeal against the judgment.
27. Thus leave to appeal is declined.
