Judgment:
Harphul Singh Brar, J.
1. This is an appeal filed against the judgment/order dated 15-2-1996/19-2-1996 of the Additional Sessions Judge, Patiala vide which he convicted the appellant Sarabjit Singh alias Sarba under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called 'the Act') and sentenced him to undergo R.I. for ten years and a fine of Rs. 1 lac. In default of payment of fine he was ordered to undergo further R.I. for one year.
2. The prosecution case briefly stated is that shortly before 3.10 p.m. on 17-8-1993, ASI Jassa Singh, P.W.4, along with the police party, was present in the area of village Bakshiwala. He received a secret information that accused Sarabjit Singh alias Sarba and his two brothers Sh. Bali and Sh. Kangan, and their father Sh. Joginder Singh, all residents of village Hirdapur were stockists of and dealers in crushed poppy heads, that if a raid was conducted sufficient quantity of the same could be recovered from them. On this, he scribed ruqa Ex. PG, and despatched it to P.S. Sadar, Patiala. On its bais, formal FIR Ex. PC/1 was registered at 3.55 p.m., on the same day, ASI Jassa Singh, P.W.4 accompanied by his police party, immediately rushed to village Hirdapur. At the phirni of that village, he co-opted with him, Gurjant Singh, Sarpanch. Then the police party raided the house of the accused, in village Hirdapur. He was not found present there. The police party, in the search of the accused, was going to some other side. On the outskirts of the village abadi the accused met them near the culvert. ASI Jassa Singh, P.W.I, arrested him. He interrogated him, while in police custody. He suffered a disclosure statement, Ex. PD that he had kept concealed eight bags each containing 35 Kg. 500 grams of crushed poppy heads in a bajra field, which his father Joginder Singh had taken on Chakota, from the Gram Panchayat, that he had their exclusive knowledge, and could get the same recovered, by giving nishandehi. His disclosure statement, Ex. PD, was recorded by ASI, Jassa Singh, P.W.4. It was thumb-marked by accused Sarabjit Singh alias Sarba and was attested by Gurjant Singh and HC Rupinder Singh, PWs. After this, ASI Jassa Singh, P.W.4 gave him an option, that if he so desired, a Gazetted Officer or a Magistrate, could be summoned to conduct his search. But the accused did not exercise this option. He reposed full confidence in ASI Jassa Singh, P.W.4. Therefore, P.W.4 recorded his statement, Ex. PE to this effect, which was thumb-marked by the accused, and was attested by Gurjant Singh PW and HC Rupinder Singh, P.W.5. Then in pursuance of his disclosure statement, accused gave nishandehi, and from the specified place, got recovered eight bags each containing 35 Kg. 500 gms. of crushed poppy heads. The accused could not produce valid licence or permit for keeping this contraband in his possession. P.W.4 separated a sample weighing 250 gms. from each of the eight bags. The sample packets, and the bags with their remaining contents, were sealed by P.W.4, with his seal bearing initials 'JS'. A specimen impression of the seal used, was also prepared. The sample packets, the gunny bags, Ex. P1 to P8, and the specimen impression of the seal used, were taken into possession, by ASI Jassa Singh, P.W.4, vide memo. Ex. PF, which was attested by Gurjant Singh, PW and HC Rupinder Singh, P.W.4, prepared the rough site plan, Ex. PG of the place of recovery with correct marginal notes. On jamatalashi, no other article was recovered from the accused. Ex. PH, which was thumb-marked by the accused, and was attested by Gurjant Singh and HC Rupinder Singh, PWs. P.W.4 recorded the statements of the PWs., under Section 161, Cr. P.C. on the same day when he was bringing the accused, the case property and the witnesses of recovery, to the police station, on the way Inspector Rachhpal Singh, SHQ, met him, in village Bakshiwala. P.W.4 produced before him, the accused, the witnesses, and the case property. He verified the investigation, questioned the witnesses and interrogated the accused. He put his own seal on the sample packets and gunny bags Ex. PI to P8, along with the pre-existing seals of ASI Jassa Singh, P.W.4. At the instructions of the Inspector/SHO, the P.W.4, deposited the case property with seals intact, with MHC Bhupinder Singh. In due course of time, the sample packets, were sent to the Chemical Examiner. He analysed them and submitted his report. Ex. PJ, opining that the samples were Chura poppy heads. After completion of investigation, the accused was challaned by Inspector Rachhpal Singh, SHO, P.S. Sadar, Patiala.
3. A formal charge under Section 15 of the Act was framed against the accused. He pleaded not guilty and claimed trial. In his statement under Section 313, Cr.P.C. he has denied all the material allegations of the prosecution and pleaded false implication. His specific plea is that no land of the Gram Panchayat, under the agreement, was on lease with his father Joginder Singh. In fact, the case property was recovered from one Karnail Singh, and was planted on him. Eventually, he examined Gurjant Singh, DW-1, in his defence.
4. After perusing the record and hearing the counsel for the parties, learned Additional Sessions Judge convicted and sentenced the accused-appellant as stated above.
5. Learned Counsel for the appellant submits that recovery of crushed poppy heads alleged to have effected from the possession of the appellant in consequence of a disclosure statement alleged to have been made by him is, fake and a padding. The learned Counsel for the appellant contends that the basic ingredients of Section 27 of the Evidence Act in relation to the alleged recovery of crushed poppy heads from the convict-appellant, have not been fulfilled in this case. He then contends that the only independent witness (Gurjant Singh, Sarpanch) of the disclosure statement and the alleged recovery, has not supported the prosecution case. Gurjant Singh, Sarpanch has been produced in defence and he has supported rather the defence version and has contradicted the prosecution story. In order to substantiate his argument, he has cited Pall v. State of Punjab 1996 (2) RCC 643, the relevant portion of which reads as under :-
It is relevant to note that S.I. Nirmal Singh had no reasonable basis in law to arrest the accused at the door of his house prior to conducting of the search of his house. The offence would be committed when he was found in an unauthorised possession of the poppy heads powder. The accused-appellant could not be legally in the custody of the police officer at the time when he is said to have suffered the disclosure statement. Section 27 of the Evidence Act lays down two important ingredients for its applicability and these are that the information must be derived from a person, accused of any offence in the custody of a police officer and thereafter, in consequence of such information when any fact is deposed to as averred then so much of such information whether it amounts to a confession or it relates distinctly to the fact thereby discovered may be proved against such person. The appellant was not accused of any offence at the time when his statement was recorded by S.I. Nirmal Singh and he could not have been arrested because he had not committed any offence. Therefore, Section 27 of the Evidence Act could not be availed of by S.I. Nirmal Singh and resultantly the alleged recovery as a consequence of the information received from the appellant could not be made admissible under Section 27 of the Evidence Act. S.I. Nirmal Singh, thus, could not in law bank upon the disclosure statement and consequent recovery of the 4 gunny bags containing poppy husk powder.
I find substance in the contentions made before the Court. On the basis of the reasoning in Pall's case (supra), the convict-appellant, Sarabjit Singh alias Sarba also could not be legally in custody of the police officer at the time when he is said to have suffered the disclosure statement. The provisions of Section 27 of the Evidence Act, thus, were not complied with. The appellant was not accused of any offence at the time when his statement was recorded by ASI Jassa Singh (PW-4) and he could not have been arrested because he had not committed any offence. Resultantly, the alleged recovery as a consequence of a information received from the appellant could not be made admissible under Section 27 of the Evidence Act. The alleged disclosure statement of the appellant and consequently recovery of 8 bags of poppy husk powder was not admissible in evidence. Even otherwise, the alleged disclosure statement made by the accused-appellant and the consequent recovery of poppy husk seems to be fake and a padding. The only independent witness Gurjant Singh, Sarpanch, joined by the prosecution, has not supported the prosecution story. Gurjant Singh, Sarpanch was left over by the prosecution as having been won over. Even if it was so, the prosecution should have tendered this witness for cross-examination by the accused. On the other hand, he has been produced by the! defence as DW-1 and he has categorically stated at the trial on oath that on recovery of 8 bags of Bhukki was made from Sarabjit Singh accused i.e. the convict-appellant, in his presence. He has further clarified in his statement on oath before the Court that he had gone to the police station in connection with a case of some buffalo and the Hon'ble High Court had directed him that he should produce the buffalo before Pritam Kaur and she may select one of them and then the police obtained his signatures in the police station. He just signed and came away and when he came to know that Jassa Singh had cited him as a recovery witness then he refused to be a witness. He has totally denied when cross-examined by the Public Prosecutor that he had hobnobbed with the accused or that he had been won over by the accused. He further denied that he had attested the alleged recovery memo. The prosecution had full opportunity to cross-examine Gurjant Singh, Sarpanch (DW-1) yet neither any question' nor any suggestion was put to him in the cross-examination as to whether he was present with the police either at the time of alleged arrest of the appellant or if the accused had made any disclosure statement in his presence or as to whether any alleged option under Section 50 of the Act was given to the appellant in his presence.
6. This evidence of Gurjant Singh, Sarpanch (DW-1) has certainly caused a dent in the alleged recovery of poppy husk in pursuance to an alleged disclosure statement Ex. PD made by the appellant before the Investigating Officer. The recovery of poppy husk is alleged to have been effected from the exclusive possession of the appellant from a Bajra field which his father Joginder Singh had taken on Chakota from the Gram Panchayat. First of all, there is no evidence on the record or even collected by the Investigating Officer that the said Bajra field was in the exclusive possession of the appellant or that of his father Joginder Singh or of any of the brother of the appellant or even in their joint possession or that it had been taken on lease (Chakota) by Joginder Sing, from the Gram Panchayat. When cross-examined, the Investigating Officer admitted that he did not examine any lease-deed in favour of Joginder Singh and he also did not examine the Panchayat record to find out whether Joginder Singh had actually taken the said land on Chakota from the Gram Panchayat.
7. Again, it may be noticed that the alleged place of recovery is open and accessible to all and sundry. Except for its mere description that it was a Bajra field, none of the two witnesses of the alleged recovery, ASI Jassa Singh (PW-4) and Head Constable Rupinder Singh (PW-5) have stated if the alleged recovery of 8 bags of poppy husk were actually lying concealed in the alleged Bajra field and if so in what manner because 8 full bags of poppy husk would certainly occupy the vast area. Even, according to the prosecution story, the secret information was against not only the appellant but also against his two brothers and their father and evidence is found on the record that all of them were joint in mess and residence. It was not for the case of the prosecution nor any evidence has been led for the matter that the appellant was in exclusive possession of the field from which the recovery is alleged to have been made. May be he could have the knowledge about the existence of the alleged bags of poppy husk without he himself being a author of their concealment.
8. In these circumstances, no reliance can be placed upon the alleged disclosure statement and consequent recovery of the poppy husk from the accused-appellant.
9. Though, it is not necessary further to examine as to whether mandatory provisions of Section 50 of the Act, have been complied with or not but still, I would like to consider this fact also. The offer Ex. PE given by the Investigating Officer to the appellant as envisaged under Section 50 of the Act when translated in English reads as under:-
In the presence of undermentioned witnesses, Sarabjit Singh alias Sarba above mentioned accused had been asked whether in accordance with the disclosure statement made by him under Section 27 of the Evidence Act, he wanted the recovery of the poppy husk being effected in the presence of a Magistrate or a Gazetted Officer. Upon this, the accused gave his consent that he has full confidence in me. Accordingly, this writing of consent has been effected which the accused and the witnesses have attested.
10. This offer made to the appellant under Section 50 of the Act, has no meaning until and unless a recovery is effected or the authorised officer is about to search the person of the accused. The offer under Section 50 is to be given with regard to the search and not before, any recovery to be made in pursuance of a disclosure statement made under Section 27 of the Evidence Act. The alleged option Ex. PE is, thus, a futile attempt to show as if the mandatory provisions of Section 50 of the Act have been complied with. The statement of prosecution witness ASI Jassa Singh (PW-4) is not in conformity with the alleged statement Ex. PE. The relevant statement of Jassa Singh made at the trial reads as under :-
I give him an option that if he so desired a Gazetted Police Officer or a Magistrate could be summoned to conduct such search but.... He reposed full confidence in me. I recorded his statement Ex. PE to this effect.
11. The option alleged to have been claimed in the Court as mentioned by PW-4 Jassa Singh ASI, is not the same as the one alleged to have been recorded in Ex. PE as it is discerned from the reading of Ex. PE itself which has been reproduced above. Head Constable Rupinder Singh (PW-5) had also made such type of statement which was not in conformity with Ex. PE.
12. In view of the above discussion, even the mandatory provisions of Section 50 of the Act have also not been complied with by the prosecution.
13. The learned Counsel for the appellant has further contended that the alleged seals on the case property or on the samples taken therefrom, are not decipherable. When cross-examined, the Investigating Officer, Jassa Singh, ASI (PW-4) stated as under :-
The SHO did not break open my seals on the case property and the sample packets. It is incorrect that the seals are not legible. (I have seen the seals and at present these are not legible).
14. When further cross-examined, this witness admitted 'that it was correct that all property deposited in malkhana was entered in Register No. 19 and the number of Malkhana entry was written on the gunny bags but now nothing is visible on the gunny bags'.
15. In a similar matter, it has been held by a single Judge of this Court in Surjit Singh v. State of Punjab 1996 (4) RCC 419, that if the seals are not decipherable at the time when the case property is produced in Court, then the possibility of case property being tampered with, cannot be ruled out and benefit of doubt should be given to the accused.
16. In these circumstances, the possibility of the case property being tampered with in the present case, is also not ruled out and its benefit certainly shall go to the accused-appellant.
17. In view of my discussion made above, the appeal is accepted. Resultantly, the judgment of conviction dated 15-2-1996 and the order of sentence dated 19-2-196, passed by the trial Court, are set aside and the convict-appellant is acquitted of the charge made against him.