Dasondha Singh vs State of Haryana

R.L. Anand, J.—This is a criminal appeal filed by Dasondha Singh and has been directed against the judgment and order dated 5.10.1996, passed by the Court of Addl. Sessions Judge, Sirsa, who convicted the appellant u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lakh; in default of payment of fine, the appellant was directed to undergo R.I. for one year.

The brief facts of the prosecution story can be summarised in the following manner;

On 27.6.1991. ASI Karishna Devi was posted in Police Station City, Sirsa, and on that day she along with Constable Ram Pal and other police officials, was going on patrolling and when the police party reached near the old bus stand, Sirsa, the appellant came there. The police party stopped the appellant and inquired from him about the contents of the bag, which he was carrying in his right hand. The appellant replied that the bag contained opium juice. The I.O. inquired from the appellant whether he wanted to give the search of the bag in the presence of a Gazetted Officer or a Magistrate. The accused offered the search to the I.O. herself. Thereafter, the I.O. took the search of the bag of the appellant and found opium juice weighing 2 kg. The I.O. separate 20 grams of the incriminating article and a small tin thereof was made. The remaining opium juice was separately sealed. Both the sealed parcels were sealed with the seal of Karishna Devi bearing inscription ''KD''. The accused could not produce any licence or permit for the possession of the opium juice. Resultantly, ruqa was sent to the police station for the registration of the case, on the basis of which formal FIR was recorded. The I.O. prepared the rough site plan of the place of recovery and recorded the statements of the witnesses. The sample of the opium juice was sent to the office of the Chemical Examiner, who after examination, declared the contents to be opium. On the completion of the investigation of the case, appellant was challaned in the court of the Area Magistrate, who supplied the copies of the documents to the appellant free of cost as required under the law and vide commitment order dated 26.2.1993, committed the appellant to the Court of Sessions to face trial. Vide order dated 16.4.1993, the learned Addl. Sessions Judge, Sirsa charge u/s 18 of the Act against the appellant on the allegations that on 27.6.1991, in the area of City Sirsa, he was found in conscious possession of 2 kg. of opium juice without any permit or licence and thereby committed an offence u/s 18 of the Act. The charge was read over and explained to the appellant, who pleaded not guilty and claimed trial.

In order to substantiate the charge, the prosecution examined Puran Chand, SHO, Police Station, Julana, who stated that on receipt of the ruqa, Ex.PB, he recorded the formal FIR, Ex.PB/1, in the police station. PW.2 is Constable Ranbir Singh, who gave his statement on affidavit, Ex.PC. HC Ram Pal, PW.3, is the witness of recovery. The I.O. Krishana Devi appeared as PW.4 and HC Suresh Singh, PW.5, gave his statement on affidavit, Ex.PH.PW.6 is Inspector Raj Singh, who verified the investigation and re-sealed the case property. Finally, the prosecution tendered into evidence the report of Chemical Examiner and closed the case.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr. PC and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated that he was innocent.

When called upon to enter into defence, the accused examined Constable Naresh Kumar, DW.1, who stated that as per the entry of Register No. 19, there is no mention that alongwith the sealed parcel, specimen seal impression was also deposited.

The learned trial Court believed the prosecution story in its entirety and rejected the defence version. The appellant was convicted and sentenced in he manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri TPS Mann, counsel for the appellant and Shri Shailender Singh, DAG, Haryana, appearing on behalf of the State and with their assistance have also perused the record of this case.

The learned Counsel for the appellant has demolished the case of the prosecution by leading a very strong argument that in this case the compliance of Section 50 of the Act has been done in a perfunctory manner. The counsel submitted that the I.O. who had the chance to associate an independent witness before serving the notice upon the appellant, has not done so and a reasonable suspicion has been created in the story of the prosecution about the genuineness of the recovery.

I fully subscribe to the argument of the counsel for the appellant by rejecting the argument of the State counsel who stated that inspite of the omission committed by the I.O., still conviction can be based, if the testimony of the I.O. is reliable, which according to him has been corroborated by the statement of HC Ram Pal. The learned D.A.G. submitted that it is a case of huge recovery of opium juice and it cannot be planted upon the appellant, much less by a lady A.S.I.

The story of the prosecution in the present case is that the appellant was spotted by the police party headed by Krishana Devi and he was apprehended on the basis of suspicion. The appellant confessed before the I.O. that he was carrying opium juice in the bag. In these circumstances, a reasonable suspicion always arose in the mind of the I.O. that the appellant was carrying an incriminating article such as narcotic drug. For this reason, she served a notice, Ex.P., According to the prosecution, the appellant told to the I.O. that he did not want the services of Gazetted Officer or a Magistrate or that the I.O. may take the search of the bag. The notice is signed by the appellant and attested by HC Ram Pal and Constable Inder Singh. The present recovery is from a public place near the old Bus Stand, Sirsa at about 5/5.30 p.m. in the month of June 1991. The police party remained at the spot for hours together. In these circumstances, the court can always expect that a lot of independent persons could be available to the I.O. at the time when the notice u/s 50 of the Act was served upon the appellant and when his statement was recorded. Strange enough that the I.O. does not get the attestation from any independent witness so as to lend confidence in the mind of the court about the genuineness of the recovery. The Legislature has made these provisions very stringent. Stringent the punishment, stricter proof is required. The prosecution is obliged to rule out every chance of false implication of the appellant. In the present case, the investigation has not been verified by a Gazetted Officer so as to lend some confidence in the mind of the court that whatever proceedings were conducted by the I.O., the same were genuine. In this view of the matter, I am inclined to hold that Section 50 of the Act has not been complied with in the spirit in which it ought to have been complied with. Once, it is established that Section 50 of the Act has not been complied with, the results are very fatal for the prosecution. The non-compliance of Section 50 of the Act not only vitiates the trial but the proceedings itself.

Therefore, I allow the present appeal and set aside the judgment of conviction and order of sentence. The case property stands confiscated to the State and shall be destroyed according to law.