Paramjit Singh v. State Of Punjab .

V.S Aggarwal, J.:— This is an appeal filed by Paramjit Singh and Bukkan Singh appellants directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Barnala dated 27.10.1995 By virtue of the impugned judgment, the learned trial court held the appellants guilty of the offence punishable under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ‘the Act’). By the subsequent finding of sentence, each of the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac. In default of payment of fine, they were to undergo further rigorous imprisonment for 2 years.

2. The relevant facts of the prosecution case are that on 31.7.1991 officer-in-charge police station, Barnala accompanied by ASI Rabi Singh and HC Malgar Singh with other police officials held a picket on the turning of link road Khudi Khurd. An Eicher tractor of red colour without number plate alongwith the trolly was seen coming from the side of village Tapa. Officer-in-charge signalled the tractor to stop. Two persons from the trolley jumped and made good their escape. After the trolley stopped, the officer-in-charge found that trolley was loaded with bricks. Appellant Paramjit Singh was on steering seat while Bukkan Singh was sitting by his side.

3. The officer-in charge asked Paramjit Singh and Bukkan Singh that the trolly was to be searched. If they desired search could be made in presence of a Gazetted officer or a Magistrate. Both reposed confidence in him. Thereupon the bricks were removed. It was found that there were 18 bags of poppy husk. Two samples of 250 grams each were taken from each of the bags. Each of the rest of the bags weighed 40 kilograms. The representative samples and the rest of the bags were converted into different parcels and sealed by the Officer-in-charge with his seal of ‘JS’. They were taken into possession vide a recovery memo. The tractor and the trolly were seized. Ruqa was sent to the police station on the basis of which formal First Information Report was recorded. Subsequently, the representative samples were sent for chemical analysis and it was opined that they were poppy husk.

4. On 7.8.1991 at old Bus Stand, Barnala, Jaspal Singh officer-in-charge of the police station alongwith ASI Rabi Singh acting on secret information arrested the other accused Mandir Singh and Jeet Singh. They were informed about the grounds of arrest and on these broad facts, challan as against the appellants and two others namely Mandir Singh and Jeet Singh was filed.

5. The learned trial court framed a charge against the appellants for the offence punishable Page: 295under Section 15 of the Act. The appellants pleaded not guilty and claimed trial. In support of its case, the prosecution examined two witnesses pertaining to the recovery of poppy husk. It was followed by the incriminating circumstances appearing in evidence against the appellants being put to them. The appellants asserted that they had falsely been implicated. They had been brought from their village on 30.7.1991 at 6.00 P.M in presence of Pritam Singh, Member Panchayat and others. The police had informed the respectables that since terrorists visit them, therefore, they were to be interrogated. Bikkar Singh even moved an application before Judicial Magistrate, Barnala on 31.7.1991 Subsequently, they were falsely implicated.

6. In defence the appellants examined Ravinder Singh, Additional Ahlmad of the court of Additional Senior Subordinate Judge, Barnala as DW-1. He stated that application Ex.D1 was presented on 31.7.1991 It bears the endorsement Ex.D1.A of the then Sub Divisional judicial Magistrate. Pritam Singh DW-2 and Dasondha Singh DW-3 both made statements that appellants were removed by the police and subsequently involved in the present case. Nothing was recovered from their residence. Jagroop Singh DW-4 on the contrary had testified that police had visited their village. Along with the appellant he was taken to the police station for enquiries. On the next day Ranjit Singh and Dasondha Singh got this witness released but appellants were involved falsely.

7. The learned trial court acquitted the other accused but qua the appellants it was held that it has been established, that recovery was effected from their possession of huge quantity of poppy husk. It was further held that there has been compliance of Section 50 of the Act. With these findings, the impugned judgment and the order of sentence referred to above followed. Hence, the present appeal.

8. The first and foremost question that came up for consideration is as to if provisions of sub-section (1) of Section 50 of the Act had been complied with or not. There was no dispute raised that provisions of sub-section (1) of Section 50 of the Act are mandatory. An offer has to be given to the accused hat if they like their person can be searched or the vehicle searched in presence of a Gazetted Officer or a Magistrate. The legislature has not provided any form of the offer to be given. It can be oral or in writing.

9. Both Jaspal Singh officer-in-charge of Police Station PW-2 and Rabi Singh ASI PW-1 stated that appellants were told that the trolly to be searched and if they like, it can be done in presence of a Gazetted Officer or a Magistrate. Both reposed confidence in the Investigating Officer. In the peculiar facts it is difficult to believe that such an offer had been given. Not only no independent witness was present but it is difficult to believe that offer was given jointly and the answer also given in a similar manner. Necessarily, the offer must be given to each of the accused individually that if he likes the services of a Gazetted Officer or a Magistrate can be procured. It has not been done. It makes one conclude that the said assertion of the prosecution was make-belief rather than genuine. It is, therefore, difficult to hold that there was compliance of the provisions of sub-section (1) of Section 50 of the Act.

10. In addition to that there is no public witness that has been joined in the raiding party. Both the witnesses stated that no witness was available. The Court would be surprised that witness was not available but there is nothing to indicate that any genuine attempt has been made to get the services of independent witnesses before the search. A person even is alleged to have been sent to fetch the scale and the weights. He could easily have also procured some reliable witness to lend authenticity to the search. It was not done. It is, therefore, difficult to believe in the facts of the present case, the testimonies of the official witnesses.

11. Otherwise also, the settled principle is that if the case of the prosecution appears improbable, the conviction cannot be based on such improbabilities. During the cross-examination of Jaspal Singh PW-2 it transpired that Niranjan Singh driver along with one official was sent for bringing the weighing material He brought the scale and weights.

12. The witness stated that a small scale with weights of 200, 100 and 50 grams were brought. It has to be remembered that as per prosecution case 18 bags weighing about 41 kilogram each were recovered. With the small scale and the weights of 200 grams, 100 grams and 50 grams, it would take at least more than 100 times to weigh the bags. It betrays common Page: 296sense to believe that such a recovery, thus, could be detected or would be genuine. The appellants indeed are entitled to the benefit of doubt.

13. For these reasons, the appeal is accepted. The judgment and the order of sentence passed by the trial Court are set aside. The appellants are acquitted giving them the benefit of doubt. They be released if not required in any other case.