Harbhajan Singh vs State of Punjab

R.L. Anand, J. (Oral)

By this judgment I dispose of two appeals, i.e., Criminal Appeal No. 791SB of 1997 (Harbhajan Singh v. State of Punjab) and Criminal Appeal No. 811SB of 1997 (Sukhdev Singh v. State of Punjab) as both the appeals are arising out of common judgment and order dated 4th October, 1997 passed by the Additional Sessions Judge, Amritsar, who convicted both the appellants under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `N.D.P.S. Act'') and sentenced each one of them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 100,000/ or in default of payment to fine to undergo rigorous imprisonment for a further period of two years.

Brief facts of the case can be noticed in the following manner :

On 8th March, 1994 Jarnail Singh, D.S.P. Ajnala, received a secret information that accused Sukhdev Singh son of Piara Lal, who had been running a shop at Chamiari Road, in front of Aneja Dairy, was dealing in opium powder in small packets, through his servants, and, if raid was conducted, he could be apprehended along with large quantity of opium powder. On receipt of secret information, Jarnail Singh, D.S.P., recorded the ruqa (Ex.PF) and sent it to the Police Station, on the basis of which, formal F.I.R. (Ex.PF/1) was recorded. Shri Jarnail Singh, D.S.P., along with other police officials, was proceeding to the shop of accusedappellant Sukhdev Singh. On the way Shri Mohan Singh, Drugs Inspector, was associated in the Police Party. Thereafter the Police Party visited the shop of Sukhdev Singh appellant, who was not present there. At that time Harbhajan Singh appellant was found present at the shop. The D.S.P. told Harbhajan Singh appellant about the purpose of his visit and offered him to get his search conducted either in the presence of a Magistrate or in his presence. The accused reposed confidence in him and then the D.S.P. conducted the search of the shop and found two fertilizer bags, containing some powder, lying there. Shri Jarnail Singh, D.S.P., took sample of 100 grams from each bag. Each gunny bag was weighed and one bag contained 15 Kgs. and 450 grams of powder and the other contained 4 Kgs. of powder. D.S.P. Jarnail Singh sealed the samples and the gunny bags with his seal, bearing inscription `JS'' and the entire case property was seized by the police vide recovery memo. (Ex.PD). Harbhajan Singh appellant could not produce any licence or permit for the possession of the opium powder. From the further search of appellant Harbhajan Singh, he was found in possession of Rs. 1,500/ notes of different denominations, which were seized vide separate recovery memo. (Ex.PE). The D.S.P. recorded the statement of the accused under Section 161, Cr.P.C. During the course of investigation it was found that the shop in question was allegedly in possession of Shri Sukhdev Singh appellant. Resultantly, it was noticed that he was also in conscious possession of the opium powder. Both the appellants were challaned under Section 22 of the N.D.P.S. Act in the Court of SubDivisional Judicial Magistrate, Ajnala, District Amritsar, who supplied copies of the documents to the accused appellants and vide commitment order dated 14th June, 1995 committed them to the Court of Session in order to face the trial. Vide order dated 2nd August, 1995 both the accused were chargesheeted on the allegation that on 8th March, 1994 in the area of Ajnala both of them were found in possession of 19 Kgs. and 650 grams of powder, which contained amobarbital and thereby they allegedly committed offence under Section 22 of the N.D.P.S. Act. The charge was read over and explained to the accused, who pleaded not guilty to the charge and claimed a joint trial.

In order to prove the charge, prosecution examined Balwant Singh (P.W.1), Mohan Singh, Drug Inspector (P.W.2), Jarnail Singh, D.S.P. (P.W.3), and A.S.I. Joginder Singh (P.W.4). The socalled independent witness Darshan Singh was given up on 12th May, 1997 as having been won over by the Police. The prosecution also tendered into evidence the report (Ex.PC) of the Chemical Examiner and closed its case.

The accused were examined under Section 313 of the Code of Criminal Procedure and all the incriminating circumstances appearing in the prosecution case were put to them. The accused denied all the allegations of the prosecution and claimed innocence. The defence of Sukhdev Singh appellant was to the following effect :

"I am innocent. I am neither the owner of any shop nor I have any shop in Ajnala at Chamiari Road. The question of recovery from my shop, therefore, does not arise. I am innocent. I have been falsely implicated in this case by the police."

The defence of Harbhajan Singh appellant was as follows :

"I am innocent. I am resident of Ajnala. A day prior to my arrest in this case I was apprehended by the Police from the Bus Stand, Ajnala, when I was going to board a bus for Amritsar as I had to make purchases from there. At that time I had Rs. 2,000/ or Rs. 2100/ with me. The police took me to the Police Station, Ajnala, where I was unlawfully detained till I was showed arrested in this case. My money was also taken by the police."

In defence the accusedappellants did not examine any witness.

Learned Additional Sessions Judge believed the prosecution story and rejected the defence version and convicted the appellants under Section 22 of the N.D.P.S. Act and sentenced them in the manner as described by me in the earlier portion of the judgment and aggrieved by their conviction and sentence present two appeals have been filed by the accused.

Shri Kanwaljit Singh, Advocate, has appeared on behalf of Sukhdev Singh appellant, while Shri T.P.S. Mann, Advocate, has appeared on behalf of Harbhajan Singh appellant. I have also heard Shri J.S. Brar, Deputy Advocate General, Punjab, who represented the State.

The case set up by the prosecution is that Shri Jarnail Singh, D.S.P., received a secret information primarily against Sukhdev Singh appellant that he was dealing in the trade of opium by selling opium powder. On receipt of this information Shri Jarnail Singh, D.S.P., constituted a Police Party; which associated a Drugs Inspector besides an independent witness Shri Darshan Singh. Thereafter the Police Party raided the shop allegedly in possession of Sukhdev Singh. In these circumstances it was the primary duty of the prosecution to prove that the shop from where the alleged incriminating psychotropic substance was recovered, actually belonged to Sukhdev Singh or that he was in possession thereof as a tenant and that both the appellants were in conscious possession of the incriminating article. It is strange that the investigation in this case has been conducted at a very poor level. The Investigating Officer could very easily establish about the ownership as well as about the actual possession of the shop in question on the date of raid. The prosecution, on the contrary, was satisfied after recording the statement of Shri Balwant Singh. No neighbourer has been associated to establish the possession of Sukhdev Singh appellant. Even nothing has been produced on record to establish that the shop in question had any electricity meter. The Investigating Officer could take the record of the Electricity Department in order to establish that Sukhdev Singh appellant was consuming electricity. If Sukhdev Singh appellant was dealing in the trade of fertilizer, some record from the office of the Drugs Inspector could also be produced to establish the possession of Sukhdev Singh. The Investigating Agency recorded the statement of one Shri Balwant Singh (P.W.1) and this witness when appeared in the witnessbox had stated that he did not know Sukhdev Singh appellant. He never gave his shop on rent to him. He further deposed that no narcotic substance was recovered from his shop. The witness was declared hostile. The statement recorded under Section 161 of the Code of Criminal Procedure was put to him. In spite of the fact that opportunity was given to the learned Public Prosecutor to crossexamine Shri Balwant Singh, no incriminating circumstance has appeared on the record from which it can be established that the shop was actually in possession of Sukhdev Singh appellant. Once this aspect is ruled out that Sukhdev Singh was the tenant or occupier of the shop in question in any capacity, the theory of his alleged conscious possession of the psychotropic substance goes into the wind. Even the learned Deputy Advocate General submitted that in all fairness, apart from the statement of Balwant Singh, there is no other evidence on the record from which a reasonable inference could be drawn with regard to the possession of Sukhdev Singh.

In these circumstances, the appeal of Sukhdev Singh is straightaway accepted as the prosecution has miserably failed to establish that Sukhdev Singh was in actual or in conscious possession of the narcotic drugs/substance on the alleged date and time of the recovery.

Reverting to the appeal of Harbhajan Singh, in my opinion, this appeal is also liable to be accepted for the reason that the mandatory provisions of Section 50 of the N.D.P.S. Act have not been complied with. It was the case of the prosecution that Shri Jarnail Singh, D.S.P., received a secret information against Sukhdev Singh appellant. While he conducted raid at the shop allegedly rented by Sukhdev Singh, he noticed the presence of Harbhajan Singh appellant. The Police Party headed by the D.S.P. had a prior information about the psychotropic substance. They had a reasonable belief in their mind that some narcotic drug/psychotropic substance was likely to be seized in pursuance of the raid conducted at the shop. The substantive evidence which has travelled on the record is the statement of Shri Jarnail Singh, D.S.P. (P.W.3) and that of Shri Mohan Singh, Drug Inspector (P.W.2). At the cost of repetition it may be mentioned that the socalled independent witness Shri Darshan Singh has not been examined by the prosecution on the usual plea that he had been won over by the accused. Under Section 50 of the N.D.P.S. Act even an oral notice can be given to the person, who was to be searched. But if the person to be searched has shedded his valuable right that he does not want to avail the services of a Magistrate or a Gazetted Officer, the law expects that in such an eventuality, the Investigating Officer should have taken the trouble to record the statement of the person to this effect. In this case Shri Jarnail Singh, D.S.P., has not recorded the statement of Harbhajan Singh to the effect that he did not want to avail the services of Magistrate. Even he does not make a mention about it in any of the documents, which have been prepared at the spot. So much so, even to this effect there is no mention in the case diaries. Thee substantive evidence of Shri Jarnail Singh (P.W.3) on this aspect is as follows :

"No consent memo. of the accused was prepared by me. First of all at the spot the recovery memo. (Ex.PD) was prepared at the spot. Nothing was mentioned in recovery memo. Ex.PD and Ex.PE that the offer was made to the accused to get his search conducted in the presence of a Magistrate or a Gazetted Officer. Nothing was recorded in the Zimni regarding the said offer to the accused."

Even the statement of Shri Mohan Singh, Drugs Inspector (P.W.2) is silent about the fact that the appellant ever reposed confidence in the Investigating Officer Shri Jarnail Singh. The above untenable statements of Shri Jarnail Singh and Shri Mohan Singh leave a reasonable doubt in mind of the Court about the genuineness of the proceedings, especially when Shri Darshan Singh, so called independent witness, has not been examined by the prosecution. In suchlike cases stricter proof is required, which has not been satisfactory discharged by the prosecution by leading cogent, satisfactory and reliable evidence. Resultantly, the appeal of Harbhajan Singh is also accepted.

Net result is that both the appeals are hereby accepted. The judgment and the order passed by the trial Court recording the conviction and sentence of the appellants are hereby set aside and both the appellants are set at liberty. Both the appellants are acquitted of the charge framed against them.

At this stage it has been stated by learned counsel appearing on behalf of the appellants that Sukhdev Singh appellant is on bail while Harbhajan Singh appellant is in jail. Let intimation about the acceptance of both the appeals be sent to the Superintendent, Central Jail, Amritsar, so that Harbhajan Singh appellant is set at liberty, if not wanted or convicted in any other case. The bail bonds/surety bonds of Sukhdev Singh appellant stand discharged.