Hukmi vs State of Haryana

K.C. Gupta, J.—This judgment shall dispose of two appeals i.e. Crl. Appeal No.445-SB of 1992 (Hukmi v. State of Haryana) and Crl.

Appeal No.446-SB of 1992 (Hukmi v. State of Haryana) as both the appeals have arisen out of the judgment dated 6.11.1992 and order dated

7.11.1992 passed by Additional Sessions Judge, Sonepat and common questions of law and facts are involved in the same.

Briefly stated, the facts of the case, as extracted from Crl. Appeal No.445-SB of 1992, are that on 12.4.1990, PW-4 Jai Pal Singh, Sub

Inspector, alongwith PW-2 ASI Hardwari Lal and other police officials was going towards Village Jagsi from the side of Huda Gangana. When

they reached near canal (Rajbaha), driver stopped the jeep for putting water in the radiator. In the meantime, Ranbir resident of Village Gangana

Huda met PW-4 Jai Pal Singh, Sub Inspector, and he was talking to him. At the same time, the appellant came from the side of Village Jagai,

holding a Katta (gunny bag) in the right arm pit. The said bag is Ex.P2. On seeing the police party, he tried to slip away but war apprehended on

suspicion. He was given offer as to whether he wanted to get himself searched in the presence of some higher officer or from him but the appellant

opted to be searched by PW-4 Jail Pal Singh Sub Inspector. Consequently, he took the search of the appellant and the bag was found to contain

2 Kgs. of Charas. 100 Gram of charas was separated as sample. The sample and the residue were separately sealed with the seal of '' JS'' and

seal after use was handed over to PW Ranbir Singh and the case property was taken into possession vide memo Ex.PA attested by the witnesses.

He sent ruqa, Ex.P3, to the Police Station for registration of the case, on the basis of which FIR, Ex.PB/1 was recorded by Head Constable

Suraj Singh.

From that very bag, Ex.P2, an envelope of green colour was recovered, which was found to contain opium, weighing 500 grams. 50 grams of

the opium was taken out as sample. The sample and the residue were separately sealed with the seal of ''JS'' and the seal after use was handed

over to Ranbir Singh and the case property was taken into possession vide memo Ex.PA/1. He sent ruqa, Ex.PB/2 for the registration of the case,

on the basis of which formal FIR, Ex.PB/1 was recorded.

After completion of the investigation of both the cases, case property and the witnesses were produced before the DSP, Balbir Singh, who

verified the facts and sealed the case property with his own seal.

On return to the police station, the case property of both the cases was deposited with the Moharrir Head Constable.

After completion of the investigation, Gian Singh, Sub Inspector, filed two challans.

FIR No.49 dated 21.2.1989 was registered u/s 18 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short, ""the Act"") against

the appellant for keeping in his possession 2 Kgs. of Charas while FIR No.50 dated 12.4.1990 u/s 18 of the Act was registered at Police Station

Baroda for keeping in his possession 600 grams of opium.

After recording evidence in both the cases, the appellant was found guilty and convicted by the Additional Sessions Judge, Sonepat, vide

judgment dated 6.11.1992 u/s 20(b) of the Act and sentenced vide order dated 7.11.1992 to RI for 10 years and a fine of Rs. one lac and in

default of payment of fine, he was further sentenced to RI for two years in FIR No.49. He was also found guilty in FIRNo.50 dated 12.4.1990

and convicted u/s 18 of the Act by the Additional Sessions Judge, Sonepat, vide judgment dated 6.11.1992 and sentenced vide order dated

7.11.1992 to RI for 10 years and a fine of Rs. one lac and in default of payment of fine, to further undergo RI for 2 years.

Aggrieved by the said judgment land orders, the accused has filed the aforesaid two appeals.

I have heard Mr. Rajnish Chadwal, counsel for the appellant, Shri Sudhir Nehra, AAG, Haryana, for the respondent and carefully gone

through the record.

Counsel for the appellant contended that there is non-compliance with Section 50 of the Act inasmuch as the appellant was not searched in the

presence of some Gazetted Officer or Magistrate. He further contended that the offer given to the appellant was not proper and he was asked that

he could be searched in the presence of some higher officer and it was not put to him that he had got a right to be searched in the presence of

some Gazetted Officer or Magistrate. There is force in the contention counsel. It is in evidence that Katta (gunny bag), Ex.P2 was under the arm

pit of the right side of the appellant and the recovery had taken place from his personal search. In such circumstances, it was desirable that he

should have been searched in the presence of some Gazetted Officer or Magistrate. The very fact that he was not so searched, there is non-

compliance with Section 50 of the Act, which is mandatory in nature.

Counsel for the appellant next contended that Ranbir Singh, independent witness of this case, had not been examined and the case depended

upon the testimony of official witnesses, which cannot be believed as they were interested in the success of the case.

Mr. Jai Pal Singh, the Investigating Officer, admitted in his cross-examination that there was no mention regarding verification of DSP on the

file. This shows that no verification was done by the DSP and the case property alongwith the witnesses was not up before him and later on this

lacuna was filled and as such, the statement of DSP that the case property was produced before him and he verified the facts and affixed his own

seal, cannot be believed.

PW AS1 Hardwari Lal stated that they returned to the Police Station at 4.30 A.M. but Sub Inspector Jai Pal Singh contradicted him and

stated that they returned to the police station at 5.30 P.M. It was admitted by Jai Pal Singh, Sub Inspector, that he did not summon any Sarpanch

or Lambardar of Village Huda Gangana or Jagsi, although these villages were situated at a short distance. This again shows that some independent

witness of status was not joined intentionally and one Ranbir Singh was joined and he was not produced. No reason was assigned as to why he

was not produced. The only presumption is that if he had been produced, he would not have supported the prosecution version. Therefore, I hold

that the evidence of police officials is not believable and the prosecution has not been able to bring home guilt to the appellant beyond reasonable

shadow of doubt.

Consequently, both the appeals are accepted and the appellant is acquitted of the charges levelled against him.