R.L. Anand, J.
1. This is a criminal appeal and has been directed against the judgment and order dated 19th October, 1995 passed by the Court of Additional Sessions Judge, Fatehgarh Sahib convicting the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'') and sentenced him to undergo rigorous imprisonment for 10 years, and to pay a fine of Rs. 1,00.000/. In default of payment of fine the appellant was further ordered to undergo rigorous imprisonment for one year.
2. Barjinder Singh son of Shri Jagdish Parshad faced a trial under Section 15 of the Act on the allegations that on 1st January, 1991 in the area of village Ghatind i.e., Bus Stand Ghatind, he was allegedly found in possession of 10 bags of poppy husk, each weighing 30 kilograms, without any licnence or permit; thereby committing offence under Section 15 of the Act. Story of the prosecution is that on Ist January, 1991 Shri Baldev Singh, S.H.O. of Police Station Amloh, along with A.S.I. Kuldip Singh, Shri Nirmal Singh, Shri Jarnail Singh, Shri Paramjit Singh, Shri Gurmukh Singh, Constable Manvir Singh and one Shri Parkash Chand, public witness, were proceeding from Police Station, Amloh, on a Govt. vehicle bearing registration No. 2324. The vehicle was driven by Constable Baljit Singh. The Police Party was proceeding after conducting investigation in case F.I.R. No. 1 dated Ist January, 1991 against one Dhira Singh from village Salana to Village Ghatind. When the Police Party reached near the waiting room of Bus Stand Ghatind, the appellant was found sitting on the gunny bags having a blanket on his body. On the basis of suspicion the appellant was apprehended. The In charge of the Police Party asked the accused if he wanted to give the search in the presence of some Gazetted Officer or a Magistrate. The accused reposed confidence in the Thanedar. Resultantly, S.I. Baldev Singh took the search of the gunny bags and found poppy husk in each of them. Each bag contained 30 kilograms of poppy husk. Out of the each bag 250 grams of the poppy husk was taken out as a sample. The sample and the remaining bags were separately sealed with the seal bearing impression B.S. The bags were taken into possession vide recovery memo. Ex. PB. Ruqa Ex. PD was sent to the Police Station for registration of the case, on the basis of which formal first information report (Ex.PD/1) was recorded. The S.I. also prepared rough site plan (Ex.PE) of the place of recovery. On receipt of the report of the Chemical Examiner, the appellant was challaned under Section 15 of the Act in the Court of the Illaqa Magistrate, who supplied copies of the documents to him.
3. The learned Magistrate vide commitment order dated 6th December, 1991 committed the accused to the Court of Session. Vide order dated 24th December, 1991, charge under section 15 of the Act was framed against the appellant. The charge was read over and explained to him and he pleaded not guilty to the charge and claimed trial.
4. In order to prove the case against the accused, the prosecution examined S.I. Baldev Singh, P.W.3; Constable Ranjit Singh, P.W.1; and A.S.I. Kuldip Singh P.W.2. The affidavit of formal official witness was tendered into evidence. The prosecution further tendered into evidence the report of the Chemical Examiner and closed the case.
5. Statement of the accused was recorded under Section 313, Cr.P.C., and all incriminating circumstances appearing in the prosecution case were put to him. The accused denied all the incriminating circumstances against him and pleaded that he was innocent. When called upon to enter his defence, the accused did not examine any witness.
6. Learned trial court relied upon the prosecution story and convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence, the appellant has filed the present appeal.
7. I have heard Shri S.N. Saini and Sh. S.S. Rana learned counsel appearing on behalf of the appellant, and Shri J.S. Brar, D.A.G. Punjab, appearing on behalf of the State and with their assistance have gone through the record of this case.
8. While recording the conviction against the appellant, learned trial court has held as under :
"The second contention of the learned defence counsel is that the police party has failed to associate independent witnesses but this contention bears no force because Parkash Chand P.W. an independent witness was already with the police party and the place where the recovery has been effected, though accessible to all and sundry, no other person was present at that time and the recovery was per chance as the accused was found sitting on the bags having wrapped a blanket on his body and on enquiry he himself admitted about the ownership of the bags (Ex. P1 to Ex. P10) having belonged to him. Thus, under the prevailing circumstances, as the recovery is per chance, there was no necessity for joining any other witness by the police as independent witness. Parkash Chand P.W. was already with them. There is no major discrepancy in the statement of the official witnesses which would make the prosecution case in any way doubtful. They have given the description, sequence, mode of recovery of poppy husk in the ordinary course of things in spontaneous manner without any improvement. Thus, the testimonies of the official witnesses are above board, unimpeachable and trustworthy.
9. Now coming to the legal proposition of law, in 1994(1) Recent Criminal Reports 303, State of Punjab v. Kulwant Singh Full Bench decision, it has been observed in paragraph 46 of the report that the provisions of sub sections (1), (2) and (3) of S. 50 of the Act were enacted by the Legislature in its wisdom only qua the personal search of a person and not regarding the search of the houses, building etc. obviously to preserve the human dignity. There is logic behind enacting the special provisions regarding the personal search because a person can carry only a small quantity of contraband narcotic drug or psychotropic substance. Thus, in order to rule out the possibility of planting small quantity of such drugs at the instance of unscrupulous officers of the enforcing agency the abovereferred substantive right has been conferred upon the suspected persons.
10. It has been further held in 1994(1) RCR 736, State of Punjab v. Balbir Singh that S. 50 is mandatory to the extent that suspected persons be given an opportunity that he can be searched before the GO or a Magistrate and the aforesaid offer may be in writing or oral one and this proposition of law has been referred to in para No. 27 of the judgement by the Apex Court. It has also been observed in this very authority that the testimonies of the official witnesses are not to be doubted or discarded merely on the ground that he happened to be an official and as a rule of caution the courts to look for independent corroboration. It has also been observed by the Lordship of the Apex Court that in case of chance recovery provisions of S. 50 of the Act are not attracted. No other law contrary to the above said law has been cited by the learned counsel for the accused.
11. Learned counsel for the appellant has assailed the judgment of the trial court and it was submitted at the first instance that there is no satisfactory proof on the record about the factum of recovery of the poppy husk from the possession of the appellant. The counsel submitted that admittedly Shri Parkash Chand was with the police party and the recovery memo. (Ex.PB) and the Jama Talashi Memo. (Ex.PC) also show that this witness was also one of the attesting witnesses. Said Parkash Chand has not been examined by the prosecution. In these circumstances reasonable dent has been caused in the prosecution version. More so, when the alleged recovery is being effected from a prominent place, like Bus Stand or village Ghatind.
12. On the contrary, Shri J.S. Brar, learned Deputy Advocate General, Punjab, submits that irrespective of the fact that Shri Parkash Chand has not been examined, still conviction can be recorded on the statement of Sarvshri Baldev Singh, S.I., and A.S.I. Kuldip Singh and it is not believable that the Investigating Officer will plant 10 bags of poppy husk from his personal resources.
13. I have considered the submissions raised by the learned counsel for the parties. There is no quarrel with the proposition of law as propounded by the learned D.A.G. that conviction can be based on the statements of the police officials. They are as good witnesses as nonofficials. But the rule of prudence requires that before I act upon the statements of the police officials, their statements must inspire confidence in the mind of the Court. It is the case of the prosecution itself that Shri Parkash Chand was with the Police Party. He has not been examined. Admittedly, the recovery has been effected at such a time and from such a place where the Investigating Officer could easily associate an independent witness so as to lend confidence in the mind of the Court about the genuineness of the recovery. It is also a fact that in this case investigation has not been verified by a Gazetted Officer. In this situation, it would not be safe for this Court to record conviction by merely relying upon the statements of S.I. Baldev Singh and A.S.I. Kuldip Singh, When there was ample opportunity for the Investigating officer to take assistance of two independent witnesses, by not taking such assistance a reasonable doubt has been created in the mind of the Court about the manner of recovery. My doubts are further strengthened with regard to the present investigation. A glance at ruqa (Ex.PD) shows that while sending the ruqa to police station, Amloh, the Investigating Officer had allegedly given an option to the accused as to whether the latter wanted his search in the presence of a Magistrate or a Gazetted Officer. But strangely enough, the Thandedar does not issue any notice to the appellant nor he records his statement. The bald assertion in the ruqa (Ex.PD) without its corroboration from an independent source, is difficult to be swallowed by this Court. Also there is no evidence on the record that after the seizure of the poppy husk, the bags in question were ever produced before some Gazetted officer. In this view of the matter the benefit of doubt has to go to the appellant.
14. Resultantly, I accept this appeal and set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State, which shall be destroyed in accordance with the rules.
15. Intimation about the acceptance of this appeal be sent to the Jail Authorities immediately. They are directed to set the appellant at liberty forthwith, if not required in any other case.
