Inder Singh vs State of Haryana

R.L. Anand, J.

This is a Criminal Appeal and has been directed against the judgment dated 22.8.1997 and order dated 26.8.1997 passed by the Court of Additional Sessions Judge, Hisar who convicted the appellant Shri Inder Singh under Sections 18 and 20 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1 lac. In default of payment of fine, he was directed to further undergo rigorous imprisonment for a period of two years.

The brief facts of the case are that on 26.5.1994 Shri Inder Singh Inspector/S.H.O. Police Station Civil Lines, Hisar alongwith Shri Devinder Kumar SubInspector, Sahab Singh Head Constable etc. was present on V.I.P. duty in Government Vehicle No. HNH 3876 at T point near Madhuban Park Hisar at about 6.00 P.M. and he received secret information and consequently immediate raid was conducted at the place pointed out by secret informer and the accused was apprehended. The appellant was informed of his right to be searched before some Gazetted Officer or Magistrate and notice under section 50 of the N.D.P.S. Act was given but the accused expressed his desire to be searched in the presence of some Gazetted Officer and consequently he was being taken to the Illaqa Magistrate but on the way Shri Inder Datt DSP came across the police party and he was told about these facts and then on the direction of Shri Inder Datt, DSP search was conducted in his presence. From one pocket of the shirt of the accused, opium wrapped in a glazed paper was recovered and on weighment the same was found to be 125 grams. 25 grams was taken out as sample. The sample and the remaining bulk were sealed in separate parcels and from the right pocket of the shirt, 175 grams of charas was recovered. 25 grams was taken as a sample. The sample and remaining bulk of the charas were sealed with the seal bearing inscription OPT. DSP Inder Datt also put his own seal. The case property was deposited with MHC. The accused could not produce any permit or licence for the possession of opium and charas. Ruqa was sent to the Police Station for registration of the case on the basis of which formal F.I.R. was registered. The samples of the opium and charas were sent to the office of the Chemical Examiner who vide report Ex.PF declared the samples to be of opium and charas. On completion of the investigation of the case, appellant was challaned under sections 18 and 20 of the N.D.P.S. Act in the court of Area Magistrate who supplied copies of the documents to the accused and vide commitment order dated 3.1.1995 committed the accused to the court of Sessions and vide orders dated 10.2.1995 the appellant was chargesheeted under sections 18 and 20 of the N.D.P.S. Act to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Inder Datt DSP Head Quarter as PW.1, Head Constable Kanwar Singh gave his statement on affidavit Ex. PB and Inspector Inder Singh appeared as PW. 3. Prosecution also tendered in evidence affidavit of Constable Ranbir Singh PW. 4 and his affidavit Ex. PG is on the record. The witnesses namely Sahab Singh Head Constable, Partap Singh ASI and Mahabir ASI were given up being unnecessary. S.I. Devinder Kumar appeared as PW. 5. He corroborated the statement of the Investigating Officer Shri Inder Singh. The documentary evidence is Ex.PA recovery memo, Ex.PB affidavit of HC Kanwar Singh, consent statement Ex.PC, intimation Ex.PD, formal F.I.R. EX.PD/1, rough site plan Ex.PE and report of the Director, Forensic Science Laboratory Ex.PF and affidavit of Constable Ex.PG.

On closure of the prosecution evidence, the statement of the accused was recorded under section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated as follows :

"The case is falsely planted upon me. The Police Officials purchased vegetables from me and when I went to police station for demanding price of vegetable, then police officials got annoyed to me and planted this false case upon me."

When called upon to enter his defence, the accused did not lead any evidence and closed the case.

Learned Trial Court relied upon the story of the prosecution and rejected the defence version and convicted and sentenced the appellant Shri Inder Singh in the manner as stated above and aggrieved by his conviction and sentence the present appeal.

I have heard Shri B.R. Gupta, Advocate appearing on behalf of the appellant and Shri Manoj Kumar Sangwan, Advocate appearing on behalf of the State and with their assistance have gone through the record of this case. After going through the record I am of the opinion that this judgment cannot be sustained for the primary reason that it was a case of secret information and in these circumstances it was obligatory on the part of the Investigating Officer to take assistance of an independent witness before conducting raid upon Inder Singh appellant in order to repose confidence in the mind of the court about the genuineness of the recovery. Admittedly in this case recovery has been attested by informer. Appellant has been arrested from a public place. The police must have remained at the spot for sufficient long time in order to complete the investigation. The police must have taken efforts to arrange the scale and weights in order to weigh the opium and charas. Even the DSP came at the spot. Any help could be taken for the association of any independent witness at the time of receipt of secret information or at least before taking search of the appellant. Unfortunately no efforts have been made either by the Investigating Officer or by the DSP. In these circumstances, it will be more risky affairs to rely solely upon the testimony of the Investigating Officer who is a witness of corroboration to the DSP. It was urged by the learned Counsel appearing on behalf of the respondent that recovery in this case has been effected in the presence of DSP who is a Gazetted Officer and even the appellant gave the consent before the Investigating Officer that he wanted to give search in the presence of a Gazetted Officer and therefore there is no wrong if the Investigating Officer has not associated any independent witness. I am not convinced with the submission raised by the learned Counsel for the respondent. The association of DSP Inder Datt in this case is not by virtue of Section 50 of the N.D.P.S. Act because secret information has already been received by the Investigating Officer and he had conceived a reasonable belief that the appellant might be in possession of charas and opium. In this view of the matter, it was obligatory upon him to seek consent of the appellant as to whether he wanted to give search in the presence of a Gazetted Officer or a Magistrate. According to Section 51 of the N.D.P.S. Act, the provisions of Cr.P.C. which are not inconsistent with the N.D.P.S. Act shall always be complied with. In this case the Investigating Officer was taking the search on receipt of secret information. He ought to have made an endeavour for association of joining an independent witness from the public. If he was in hurry to apprehend the accused after receipt of the secret information, he ought to have associated an independent witness after apprehension of the accused and before taking the search of the present appellant. Even in this case, the association of DSP appears to be doubtful because after going through the statements of Sarvshri Inder Datt DSP (PW.1) and Inspector Inder Singh (PW.3) this court is not clear as to who was the Investigating Officer. According to Inder Datt (PW.1) he conducted search of the person of the accused which led to the recovery of 125 grams of opium from the left pocket of the shirt wrapped in a yellow polythene and 175 grams of charas from the right pocket of his shirt wrapped in a blue polythene paper. I precisely quote statement of Inder Datt as follows :

"So I conducted the search of the person of the accused which led to the recovery of 125 grams of opium from the left pocket of the shirt wrapped in a yellow polythene paper and 175 grams of charas from the right pocket of his shirt wrapped in a blue polythene paper."

Now let us switch over to the statement of Shri Inder Singh (PW.3) who deposed as follows :

"In the presence of DSP I conducted the search of the person of the accused which led to the recovery of opium weighing 125 grams wrapped in a yellow polythene paper from the right pocket of his shirt and charas weighing 175 grams wrapped in a blue polythene paper from the left pocket of his shirt."

If the DSP Inder Datt had conducted the search as stated by him while appearing as PW.1, there is no difficulty in saying that he has not associated any independent witness. This is not the case of the prosecution. Rather the case of the prosecution is that secret information was received by Inder Singh Inspector. He apprehended the accused and served a notice upon him under Section 50 of the N.D.P.S. Act. The appellant gave reply to Investigating Officer Inder Singh that he wanted to give search in the presence of a Gazetted Officer. When the appellant was being taken to the court of Area Magistrate, DSP Inder Datt met the police party per chance and the accused was produced before him. This evidence of Inder Singh Inspector and Inder Datt DSP is contradictory with each other. The fact remains that neither Inder Datt nor Inder Singh Inspector took assistance of any independent witness so to implicate Shri Inder Singh appellant. In this situation the learned Counsel for the appellant has relied upon several judgments to show that when an opportunity was there to the police party to associate an independent witnesses and the police omitted to do so, in such a situation conviction cannot be based. The first case law relied upon by Shri R.B. Gupta is 1996(4) Recent Criminal Cases 163, Chand Mohd. v. State of Punjab where it was laid down that prosecution can succeed only on discharging the initial burden of proving its case against the accused, and strongest of suspicion does not constitute the proof required. Even though the statute does not make it obligatory, as a rule of prudence the Police Officer should carry out the search, if it is possible to secure the presence of an independent persons in their presence. The court would be extremely reluctant to uphold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and improbable to procure the presence of such witnesses. Here is the case of secret information. It was not a case of chance recovery. There is no evidence on the record to suggest that the Investigating Officer tried to associate an independent witness or that such independent witness was not available to the police. In this very situation it was observed by his Lordship that when there is no reliable and credible evidence on the record to show that the Investigating Officer had made any genuine effort to call for independent public witnesses to witness search of the appellant or the bag which he was allegedly carrying, particularly when he had ample time, means and opportunity to procure the presence of independent public witnesses to witness the search. It is a serious omission on the part of the Investigating Officer which is enough to cast grave suspicion as regard the alleged recovery of the poppy husk from the possession of the appellant. The ratio can be safely applied to the facts of the case in hand. Similar view was taken in 1996(4) R.C.C. 203 Jagtar Singh v. State of Punjab and 1996(1) R.C.C. 411, Baba Budh Giri Chela v. State of Haryana by his Lordship V.S. Aggarwal who was pleased to hold that if the Investigating Officer failed to join witnesses, and that he gives a vague explanation that some public persons were called and that they refused to join, in such a situation vague statement is liable to be rejected. In this case there is no evidence that Inder Singh made a genuine effort for joining the independent witness on receipt of secret information. In 1996 R.C.C. 610 Gaja Nand v. State of Haryana it was held that once the recovery has been effected in broad day light from a public place, it is difficult to believe that during this period when the police party remained at the spot, no public witness was available. The attention of this Court is also invited to 1998(2) R.C.R. 67 Balbir Singh v. State of Punjab and 1998(2) R.C.R. 507 Jodha Singh v. State of Punjab . In these cases the recovery was made on thoroughfare when no independent witness was joined by the Investigating Officer and that the investigation was confined only to the Investigating Officer who took trouble to invite DSP of his own department in such circumstances, such Investigating Officer virtually throttled the right of the accused to give search in the presence of independent witness.

This appeal is going to be accepted on the proposition that it was obligatory on the part of the Investigating Officer to associate an independent witness on receipt of secret information, or on the way or on the spot.

Resultantly I accept the appeal and set aside the judgment and order of the trial Court and acquit the appellant of the charges framed against him. The case property, however, stands confiscated to the State which shall be destroyed according to rules. Let intimation of acceptance of this appeal be sent to Superintendent, Central Jail, Hisar so that the appellant may be set at liberty forthwith if not wanted or convicted in any other case.