Sona Ram vs State of Punjab

M.M. Aggarwal, J.—This is an appeal against the judgment dated 12.9.1991 passed by the Additional Sessions Judge, Bathinda whereby the accused-appellant is was convicted for the offence u/s 18 of the Narcotic Drugs & Psychotropic Substances (Act (hereinafter to be referred as ''the Act'') and was sentenced to undergo R.I. for ten years and to pay a fine of Rs.one lac or in default of payment of fine, he was to undergo R.I. for two years.

The prosecution case against the appellant was that on 30.9.1990 at 2.00 P.M., he was apprehended by the police party headed by SI Gian Singh in the area of Bibiwala. At that time, he was having 3-1/2 kg. of opium in a'' Jhola'' carried in his left hand. S.I.Gian Singh had offered the search to be conducted before the Gazetted Officer but the accused reposed confidence. Memo Ex.PA was prepared, which was thumb marked by the accused. The search was conducted and 3-1/2 kg. opium was recovered out of which 100 grams of opium was separated as sample. After obtaining the report from Chemical Examiner the accused-appellant had been challaned after investigation. He faced trial and was convicted the sentenced aforesaid.

It has been argued by learned counsel for the appellant that there was noncompliance of Section 50 of the NDPS Act since the offer made was partial. The accused-appellant was not taken to any Magistrate or Gazetted Officer. The recovery was effected from a ''Jhola'' in his right hand. He has relied on a Full Bench judgment of this Court titled Mohan Singh v. State of Punjab, 2005(2) Criminal Court Cases 623 (P&H): 2004(4) RCR(Criminal) 260. Learned Counsel for the appellant has also argued that no independent witness had joined. He pointed that the accused-petitioner was actually apprehended on 20.9.1990 and he was detained for ten days and was falsely implicated in this case. He has relied on statement of DW-1 and DW-2, in this connection, and documents D-1 and D-2.

On behalf of the State, it has been argued that the recovery of 3-1/2 kg. opium is heavy and there was no motive on behalf of the police officials to falsely implicate the accused.

On behalf of the prosecution, ASI Gian Singh had appeared as PW-1 and SI Gian Singh had appeared as PW-2. It was admitted that the recovery was effected on a thoroughfare and the people were passing. DW-2 Mukhtiar Singh had stated that he along with Sona Ram accused was coming to Bathinda to attend the Court. When they reached on the trijunction of Bibiwala Road, Bathinda, a police party was standing there and they got down Sona Ram from the bus. He also got down himself from the bus and followed to the police station but the police did not release Sona Ram. He went to the Court and made an application accompanied by an affidavit saying that Sona Ram had been detained. He had further deposed that after detaining for about 10 days in the police station and the police had falsely involved the accused in this case.

A Criminal Ahlmed of the Court of the Additional Sessions Judge, Bathinda had produced the record in which application dated 20.2.1990 filed along with affidavit of Mukhtiar Singh was lying. From the application of Mukhtiar Singh as well as Affidavit it would come out that on 20.9.1990, Sona Ram was detained by the police.

In the present case, there is no independent corroboration. The accused-appellant was not taken to Magistrate or Gazetted Officer. Ex.PA, the consent memo will show that the offer made was that the accused could be taken to a gazetted officer or search could be before gazetted officer. There was no mention that he could be taken to a Magistrate for search, if he so desired. As such, it was a partial offer and there was non-compliance of Section 50 of the Act. Merely because the recovery shown is 3-1/2 kg. of opium and is heavy, will not lead to presumption against the accuseji-appellant.

In view of the above facts and circumstances, this appeal is accepted. Accused-appellant is acquitted of the charge levelled against him. Bail bonds shall stand discharged.