Rameshwar vs State of Haryana

K.S. Kumaran, J.

The appellant Rameshwar son of Parma Nand stood trial before the Additional Sessions Judge, Karnal in Misc. Sessions Case No. 95/2 of 1986 under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and after trial he was found guilty and sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs. 1 lakh, and in default to further undergo Rigorous Imprisonment for five years. The case of the prosecutions is as follows :

On 10.1.1986 Inspector Sada Ram, Assistant SubInspectors Zile Singh, Bachan Singh along with the Police Party were returning from Model Town, Panipat towards Police Station City, Panipat in the Jeep, after patrolling, in the early hours of the day. At about 5.20 a.m. appellant/accused Rameshwar, who was coming from the side of the Railway Colony, tried to turn back on seeing the police party. On suspicion he was apprehended and was found to carry 7 Kg of opium apart from a shirt and Pyjama in a jhola, which the appellant/accused was carrying. The appellant had no licence to possess opium. The sample of opium collected and remainder were separately sealed in parcels and were taken into possession under recovery memo Ex.PA. On the ruqa Ex.PB sent to the Police Station a formal F.I.R. Ex. PB/1 was registered. The sample was sent for Chemical Analysis and the report thereof is Ex.PD. The prosecution examined Assistant SubInspector Zile Singh and Inspector Sada Ram apart from marking the affidavit of MHC Bhalla Ram (Ex.PE) and Constable Sunder Lal (Ex.PG/1). When questioned under Section 313 Cr.P.C. the appellant/accused denied the allegations and pleaded false implication. According to him he was coming from Delhi and was sitting in the Bus, which stopped at Bus Stand, Panipat, and that a constable who came into the Bus had taken him to the Police Station. The learned Additional Sessions Judge accepted the case of the prosecution and convicted and sentenced the appellant/accused as mentioned above. Aggrieved by the same the accused has now come forward with this appeal.

The first point raised by the learned counsel for the appellant is that the place at which the appellantaccused is stated to have been arrested is very near a residential colony, but, in spite of that no independent witness was joined by the police party at the time of alleged search and seizure, and this, coupled with the other circumstances, would to show that the case of the prosecution is not true. PW1Zile Singh, ASI of Police Station City, Panipat, in his evidence though, had first stated that the nearest house is at a distance of 1000/1200 yards from the place where the accused was apprehenced, later on stated that Bishen Sarup Colony is at a distance of 10/15 yards from the point where the road from the Railway Colony joins Assandh Road, and that the accused was apprehended on the point wherefrom the road to Bishan Sarup Colony takes off from Assandh Road. PW2Inspector Sada Ram also admitted in his evidence that the accused was apprehended by them on the point where the road takes off to Bishen Sarup Colony from Assandh Road, Panipat. Therefore, it is clear that very near the point where the accused is alleged to have been arrested, there is a residential colony, and in spite of that no independent witness was joined at the time of the alleged seizure of the contraband from the appellant. The appellant was suspected and apprehended. He is alleged to have had a jhola in his hand. Before searching that, the police party could have got some independent witness, which they have not done. The explanation that it was early morning, i.e., about 5.20 a.m. and that nobody was willing to come is not acceptable, because, in all cases, the prosecution can easily explain by stating that the independent witness was called but was not willing to come and join investigation. Further the evidence of PW1Zile Singh shows that a Constable was sent for bringing a tin for keeping the opium alleged to have been seized. If the Constable is able to bring a tin, then, he could as well have brought a witness also.

Further, the case of the prosecution is that the police party, including PW1 and PW2 were coming back to the police station, Panipat and at about 5.20 a.m. the accused was apprehended and the contraband seized from him. But PW1 stated in his evidence that the accused was apprehended at 5.15 a.m. Of course, the difference is only five minutes and this would not have made much difference in normal circumstances. But, this is a case in which no independent witness was joined by the prosecution. Secondly inspite of the fact that the accused is stated to have been arrested at 5.15 a.m. and the ruqa (intimation) was sent to the police station at 6.30 a.m., PW1 Zile Singh stated in his evidence that they reached the police station at 9.00 or 9.15 a.m., while PW2 Sada Ram stated in his evidence that they remained at the spot of arrest up to 8.45 9.00 a.m. According to the evidence of PW1Zile Singh, Police Station City, Panipat is one kilometre from the alleged place of recovery. These matters assume importance because of the fact that there was no necessity for the police to remain at the spot where the appellant is alleged to have been arrested, till 9.00 or 9.15 a.m. and reached the police station at about that time, when it is admitted that the distance between the alleged place of arrest and the police station is only one km. According to the defence, the accusedappellant had come by bus and when the bus stopped at the Bus Stop, a police constable came and took him away from the bus. According to him, the jhola belonged to one Balwinder Singh who had also travelled in the bus and gone away at that time. The appellant contends that the bag did not belong to him. As rightly contended by the learned counsel for the appellant, the case of the defence is probablised by the fact that the police reached the police station only at 9.00/9.15 a.m. If the accused had been arrested at 5.15 a.m. and the ruqa sent to the police station at 6.30 a.m., there was no necessity for them to remain at the alleged spot of arrest till 9.00/9.15 a.m. This only goes to probablise the case of the defence that the accused was not arrested at the alleged place of arrest but was taken away from the bus which was standing at the bus stop, at 8.30 a.m. So, the non joining of any independent witness, the difference in the alleged time of arrest, and the admitted time of reaching the police station only after four hours from the time of the alleged arrest, all go to cast a shadow of doubt on the case of the prosecution, the benefit of which should go to the accused appellant.

The learned counsel for the appellant also contended that u/s 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, a report about the arrest and seizure should have been made within 48 hours to the immediate superior, and that no such report has been sent in this case. The prosecution does not claim that the investigating officer sent such a report. Non compliance with the provisions of section 57 of the said Act cannot vitiate the prosecution, but, we will have to see whether it has caused any prejudice to the accused and whether such noncompliance will have a bearing on the appreciation of the evidence regarding the arrest and seizure as well as on the merits of the case, as has been held by Hon''ble Supreme Court of India in State of Punjab v. Balbir Singh, 1994(1) RecentCR 736 . The learned counsel for the appellant contends that if the investigating officer had sent such a report, then the court will be in a position to find out if really the arrest and seizure had taken place at the alleged time and place of occurrence, and that the Court has lost the opportunity to test the case of the prosecution, since the prosecution had failed to comply with this provision. But, this cannot be stated to have caused any prejudice to the accused, because such a report had to be sent within 48 hours. The investigating officer had sent a ruqa and a formal FIR has also been recorded on the date of occurrence alleged. Therefore, the version of the prosecution has been recorded on 10.1.1986 itself. So, the fact that a report u/s 57 of the said Act had not been sent cannot cause any prejudice to the accused appellant in this case.

Taking into consideration the other factors already pointed out, I am of the opinion that the prosecution has not proved its case beyond doubt and the accused is entitled to the benefit of doubt.

One other factor which goes against the prosecution is this. The prosecution has filed two affidavits marked as Ex.PE and Ex.PE/1, respectively, by which the link evidence has been sought to be introduced. Affidavit Ex. PE is that of MHC Bhalle Ram of Police Station City, Panipat, to the effect that the sealed parcel weighing 100 gms. of opium, and the seal "SR" along with the other case property, were handed over for being deposited in Malkhana; that on 13.1.1986 the sample (sealed parcel) of opium was sent through Constable Sunder Lal in safe condition for getting the report of the Chemical Examiner, and that so long as the sealed sample remained in his custody, it was not tampered with. The affidavit of Constable Sunder Lal is marked PE/1. According to that affidavit, the sealed sample parcel was handed over to him by MHC Bhalle Ram; that he deposited the said parcel on the same day in the office of the Chemical Examiner, and that so long as the sealed sample of opium remained in his possession, it was not tampered with. But, the contention of the learned counsel for the appellant is that these two affidavits have not been properly sworn to and affirmed by the respective deponents. The affirmationportion appearing above the signature of the respective constables is as follows :

"I solemnly affirm and declare that my aforesaid statement is correct and true to the best of my knowledge and belief and nothing has been concealed therein."

The language and form of this affirmation are the same in both the affidavits. The learned counsel for the appellant relying on the decision of this Court in Joginder Singh v. State of Haryana, 1995(1) ACD 394, contended that the affidavits of the constables cannot be relied on for convicting the appellant as they are defective. The affidavit concerned in the said decision is also more or less on the same lines as the affidavits concerned in the case before me. Hon''ble Mr. Satpal, J., while deciding the abovesaid case held that from the affidavit it is clear that the deponent had not mentioned as to which part of the affidavit is based upon his personal knowledge and which part of the affidavit is based on his belief; that such an affidavit is inadmissible in evidence and could not have been relied upon for convicting the appellant applies to the facts of the case before me and, therefore, the affidavits of the two constables could not have been relied upon. If these two affidavits could not be relied upon, then, the link evidence is missing and the appellant could not be convicted.

Therefore, taking into consideration all these aspects of the case, I find that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt and he is entitled to be acquitted.

In the result, the appeal is allowed, setting aside the conviction of the appellant and the sentence passed against him. The appellant is acquitted. The fine, if paid by him, be refunded to him.