Manphool vs State of Haryana

A.P. Chowdhri, J

Manphool, 32, appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1986, by the Additional Sessions Judge, Sirsa, by order dated 5th September, 1988. He was sentenced to rigorous imprisonment for ten years and a fine of Rs. 1,00,000/. In default, he was further sentenced to rigorous imprisonment for two years, by order dated 6th October, 1988.

The prosecution case is that on 26111987, a police party comprising of Sub Inspector Amrik Singh PW4 Head Constable Rajinder Singh PW3 and Constable Pirthi Singh etc. were on patrol. They were near a Dera called Baba Bhuman Shah in the area of Village Mangala. The accused came from the side of village Titukhera carrying a small bundle in his right hand. He betrayed signs of nervousness on seeing the police party and quickly turned back. On suspicion he was apprehended and on search he was found carrying 900 grams of what was suspected to be opium. 50 grams of the substance was taken out by way of sample and the remaining substance were scaled into parcel under the seal of Sub Inspector Amrik Singh. The recovery memo Exhibit PB was prepared. Ruqa Exhibit PA was sent to the Police Station on the basis of which Head Constable Jagdish Rai PW1 catered formal First Information Report Exhibit PA/1. Rough site plan of the place of recovery was prepared. On an examination of the sample, the Chemical Examiner by report Exhibit PD declared the sample to be opium. In the absence of necessary licence, the accused was challaned, under Section 18 of the aforesaid Act.

At the trial, the prosecution examined Head Constable Rajinder Singh PW3 and Sub Inspector Amrik Singh PW4 as witnesses to the recovery besides some formal witnesses. The report of the Chemical Examiner was tendered in evidence. The witnesses supported the prosecution version set out above.

The plea of the accused was one of denial and false implication on account of party faction in the village. He produced no evidence in defence.

On an evaluation of the evidence, the learned Additional Sessions Judge accepted the testimony of the recovery witnesses and convicted and sentenced the accused as already stated. The accused had preferred this appeal through jail. Shri J.S. Dhillon, Advocate was appointed amicus curiae and he has argued the appeal.

The contention of the learned counsel for the appellant that for an offence which involves a drastic punishment of a minimum of `Ten Years'' imprisonment and a minimum fine of Rs. 1,00,000/ it is expected that the standard of investigation will be of a high order. In the facts of the present case, it was pointed out that the investigation held was a routine affair and no effort had been made to comply with the mandatory provisions contained in Chapter V of the Narcotic Drugs And Psychotropic Substances Act, 1985.

The contention of the learned counsel appearing for the State, on the other hand, is that both the witnesses to the recovery had supported the prosecution case. The witnesses were not shown to be inimically disposed towards the accused and there was no sufficient reason to discard their testimony only on the ground that they are Official witnesses.

I have given my anxious consideration to the respective contentions of the learned counsel.

The fate of the appeal evidently turns on the question whether the testimony of the two recovery witnesses can be given unreserved credence.

Head Constable Rajinder Singh PW3 stated in crossexamination that he did not offer himself for search to the accused. The place of alleged recovery was near a Dera where people of the village in sufficient number gather to offer prayers. There is Sirsa Elnabad Road which is a busy road. Some shops were situated at a distance of about 200 to 250 yards from the place of recovery. Bus stand of village Mangala is also situated near those shops. The village itself is about half a kilometre from the spot. The road going to village Titukhera also passes near the place of recovery. The writing work in connection with the present case took about 3 to 4 hours. Some persons from the public had brought one cot from the Dera on which the Sub Inspector sat down to do the writing work. These facts were also admitted by Sub Inspector Amrik Singh PW4 in crossexamination. He also admitted that he did not try to call any respectable person from the village or elsewhere to join the investigation.

A perusal of the evidence on record further shows that the mandatory provisions of Sec. 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, are not shown to have been complied with. The provisions of Section 50 of the Act have been held to be mandatory in character by a Division Bench of this Court in Amrit Singh v State of Haryana, 1990(2) Recent Criminal Reports 525. The case in hand is on a better footing because in the facts of Amrit Singh (supra), the investigating officer at least claimed in his statement that he offered to produce the accused before a gazetted officer or a Magistrate for the purpose of his search and the accused declined to be so produced. In the facts of the present case, no such claim was made by the investigating officer. In the absence of evidence showing compliance of what has been held to be a mandatory provision of the Act, it is not possible to sustain the conviction. It has also been seen that police appears to have adopted the attitude of acceptitorrejectit, rather than making efforts to join independent person or persons to be present at the time of interrogation and alleged recovery. I am, therefore, of the view that the accused deserves the benefit of doubt and accordingly the conviction and sentence are set aside. He shall be set free at once. Fine, it paid, shall be refunded.

JUDGMENT accordingly.