Kashmiri Lal vs State of Punjab .

Jai Singh Sekhon,J. (Oral)

Kashmiri Lal, appellant, was tried and convicted on a charge for offence punishable under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) for possession of 40 kilograms of poppy husk by the learned Additional Sessions Judge, Jalandhar. He was awarded sentence of ten years and fine of Rs. 1 lac or in default of payment of fine to undergo further rigorous imprisonment for one and half years.

Feeling aggrieved against his conviction and sentence, the appellant has come up in appeal.

In brief the facts of the prosecution case are that on 4.5.1986, A.S.I. Narinder Singh along with Head Constable Baljit Singh and other police officials of Police Station Nawanshehar was proceeding towards canal bridge in the area of village Sanawa during usual patrolling when the accused happened to accost it at about 8.30 a.m. He tried to slip away which resulted in suspicion and apprehension. He was found carrying a gunny bag on the carrier of his bicycle, Exhibit P1. A sample of 250 gms. of poppy husk was separated from the bulk and the remaining poppy husk was separately sealed in the said bag. All these articles were taken into possession vide memo. Exhibit PD. A.S.I. Narinder Singh got registered a case under section 15 of the Act against the accused vide F.I.R. Exhibit PE/1 in the police station as he failed to produce any licence, permit or authority for the possession of the same. The rough siteplan Exhibit PF of the spot was also prepared by the Investigator. He also recorded the statements of the witnesses. A sample was sent to the Chemical Examiner, who vide his report, Exhibit PC, confirmed it to be poppy husk due to presence of morphine meconic acid therein.

After completion of investigation, the accused was arraigned for trial on such like allegations.

Before the trial Court in order to prove its above referred case, the prosecution examined Head Constable Baljit Singh (PW 1) and Assistant Sub Inspector Narinder Singh (PW 2) as witnesses to the actual recovery. The formal evidence of Constable Hardial Singh and M.H.C. Jasbir Singh was tendered on affidavits which were ordered to be read as Exhibits PA and PB respectively, as these witnesses were not required by the defence for cross examination purposes. The report of the Chemical Examiner Exhibit PC was also tendered.

Before the trial Court, the version of the accusedappellant was that of innocence and false implication on account of the police station Nawanshahr being annoyed with him as his uncle Chuharoo and certain other persons were illegally detained by the police of that police station and a raid was conducted by the warrant officer under the orders of the High Court in a writ petition filed on behalf of those detainees. The certified copy of the writ petition was also tendered as Exhibit DA.

The trial Court, however, believing the prosecution evidence coupled with the recovery of poppy husk and report of the Chemical Examiner convicted and sentenced the appellant as referred above. The defence version did not find favour with the trial court, because the above referred habeas corpus petition pertained to year1981 while the recovery was effected in the year 1986.

Mr. Mann contends that the mandatory provisions of section 50 of the Act have not been complied with. There is no force in this contention as it is not the recovery from the person of the accused but from the bicycle which he was riding. Thus, it cannot be said to be a case of personal search, whereas the provisions of section 50 of the Act gave option to the accused to claim his personal search before a gazetted officer or a Magistrate. The police officials are not required under the law to apprise the accused of his above referred rights as has been held by the Full Bench of this Court in Criminal Appeal No. 298DBA of 1991 (State of Punjab v. Kulwant Singh) decided on 17th December, 1993 : 1994(1) Recent Criminal Reports 303.

There is no doubt that the above referred habeas corpus petition was filed on 25.7.1981 by Mst. Kailash wife of one Kashmiri and a warrant officer was appointed. The report of the warrant officer attached with judgment, Exhibit DA, reveals that he had visited the police station on 27.7.1981 and found that certain persons were being legally confined at the police station as they were arrested in some criminal case, whereas Chuharoo was not found present there. A.S.I. Narinder Singh during crossexamination simply depicted ignorance about filing of such writ petition. The degree of annoyance of the police officials of a particular police station by the visit of the warrant officer appointed in habeas corpus petition at the instance of a private party can be well imagined. Thus, even though the said writ petition was filed in year 1981, the police officer posted in that police station subsequently would be instructed by their predecessor about inconvenient persons residing in that area who had earlier resorted toff file such petitions. Consequently, the possibility of the police officials being annoyed with the appellant cannot be ruled out.

The question then arises whether the testimony of the police officers should be discarded on this ground alone. In this regard it is noteworthy that A.S.I. Narinder Singh during crossexamination admitted that onetwo persons had passed by them during their stay at the spot but he had not joined any person in the investigation of this case. He also admitted having not called any person from Sanawa bridge before searching the gunny bag and that Tarsem Lal Constable had brought the weights and weighingscale from village Sanawa. He further stated that shops, schools and busstop are located near Sanawa bridge. According to Head Constable Baljit Singh, the Said bridge falls at a distance of four killas from the spot. Under these circumstances, during daytime, the nonjoining of any independent witness, introduces an infirmity in the prosecution person and leads to the conclusion that reasonable possibility of false implication of appellant due to the above referred background cannot be ruled out.

Consequently, for the reasons recorded above, there is no escape but to accept this appeal and to set aside the order of conviction and sentence of the trial Court. It is ordered accordingly. The appellant is on bail. His bail bonds are ordered to be discharged.