UMA NATH SINGH, J. - (1.) THIS criminal appeal arises out of a judgment dated 31.1.1994 passed by learned Additional Sessions Judge, Patiala, in Sessions Case No. 23 of 21.10.1992, recording conviction of accused-appellant Mewa Singh under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act'), and sentencing him to undergo RI for ten years with a fine of Rs. 1,00,000/-; in default of payment of fine, to undergo further RI for a period of two years.
(2.) IT appears that on 8.1.2.1991, SI Hitender Singh Ghai (PW5) along with his policy party consisting of HC Inderjit Singh (PW), Constable Harjit Singh (not examined) and other police officials, was present in the area of village Mehas on a canal bridge in connection with police patrol duty. He received a secret information that accused appellant Mewa Singh son of Sampuran Singh is engaged in selling poppy husk and if raided, that contraband item could be recovered from his possession. A ruqa (Ex.PF) was sent to police station through C. Harjit Singh, for registration of FIR. Accordingly, FIR (Ex.PF/1) was recorded by ASI Rame Shah (not examined). Thereafter, SI Hitender Singh Ghai (PW5) with police party set out for the place of recovery, however, on the way, as he met Kaka Singh, a public witness (PW4), near the turning of village Rohti Mouran, he also associated him. When the police party reached the canal bridge of Rohti Chhana, the accused was spotted coming from the direction of village Bhojomajri. As the accused was known to public witness Kaka Singh from before, on his pointing out, he was arrested and later interrogated. During the course of interrogation, accused Mewa Singh made a disclosure statement that he had concealed 30 bags of poppy husk under a kikar tree near village Rohti in some ditches and could get the same recovered. Statement of the accused was reduced into writing vide Ex.PA, whereon, he also affixed his thumb impressions. His statement was attested by public witness Kaka Singh (PW4) and HC Inderjit Singh (PW1). It appears that accused appellant Mewa Singh was also given an offer in terms of Section 50 of the Act, as to whether he wanted to be searched in presence of a Magistrate or before a Gazetted officer and he gave his consent to be searched by Police Sub Inspector Hitender Singh Ghai (PW5) himself. Thereafter, the accused appellant led the police party to the spot where he had concealed the contraband item, 30 bags of poppy husk, and got the same recovered. On weighment, each bag was found to contain 35 Kgs. of poppy husk. Thereafter, one sample of 250 grams from each bag was drawn and all the 30 samples were made into separate parcels. The residue quantity of poppy husk was put it to the same gunny bags. All the sample parcels and gunny bags were sealed on the spot with the seal of SI Hitender Singh Ghai (PW5) with seal impression "HSG". Case properties relating to search and seizure were taken into possession vide recovery memo (Ex.PB) which was attested again by the sane set of witnesses, namely, HC Inderjit Singh (PW1) and public witness Kaka Singh (PW4). The seal of police Inspector Hitender Singh Ghai (FW5) was handed over to public witness Kaka Singh (PW4). Investigating Officer Hitender Singh Ghai (PW5) also prepared a rough site plan (Ex.PD) with correct marginal notes and recorded the statements of prosecution witnesses on the spot. He took the accused person in custody and having returned to police station, deposited the case properties with seals intact with Moharir Head Constable Jai Gopal (PW2) and the accused was lodged in police lock up. The samples were later sent to Chemical Examiner's office for testing and on receiving a report (Ex.PH), and having completed the investigation, accused appellant Mewa Singh was challaned and sent up for trial. On the case being committed, he was tried upon by learned Special Judge who held him guilty of the offence charged with. Learned counsel for the accused-appellant, Smt.Baljit Kaur, submitted that though the secret information was reduced into writing by SI Hitender Singh Ghai, Investigating Officer (PW5), and on the basis thereof, a formal FIR (Ex.PF/1) was recorded, but the same was not sent to any higher officer, as required under the provisions of Section 57 of the Act. This is also her submission that the case properties and the accused were not produced before a superior police officer by the Investigating Officer (PW5). She further submitted that the contraband item was recovered from an open space, a land belonging to Canal Department. Moreover, public witness Kaka Singh (PW4) has also stated that the said land belonged to hire and his brother. This is her further submission that public witness Kaka Singh has also stated that the accused-appellant was not known to him from before, whereas, the police proceeding indicated that on being pointed out by Kaka Singh, who claimed to have known the accused, accused Mewa Singh was taken in custody. She further submitted that a CSFL form required to be filled up for sending the samples and sample seals to Forensic Science Laboratory for chemical examination, was not filled up on the spot, but was filled up later on the date when these articles were sent to the Chemical Examiner for testing. This is also her submission that the MHC (PW2) with whom the case properties were deposited and to whom the accused was handed over, did not turn in witness box and his evidence was placed only on an affidavit, which is neither attested nor verified. She further submitted that though the seal of SI Hitender Singh Ghai (PW5) was given to public witness Kaka Singh (PW4), but that witness has nowhere stated that the seal was handed over to him, nor the SI/SHO (PW5) has mentioned the date and time when the seal was handed over to witness Kaka Singh. She furthermore submitted that instead of drawing two samples from each bag, only one sample was taken, and that the recovery was effected on 8.12.1991, whereas the samples were sent for Chemical Examination on 23.12.1991. Thus, there was an Inordinate delay of 14 days in the dispatch of the samples to FSL for testing and there is no plausible explanation for the same to be condoned. Moreover, the seal and case properties remained with SI/SHO Hitender Singh Ghai (PW5), who is also the complainant in this case. Further, public witness Kaka Singh (PW4) has mentioned in his evidence that though about 100 persons were present on the spot, but no other public witness was associated with the investigation. Further, the defence side produced witness Joginder Singh as DW1, who has stated that the accused was arrested from his house and not from the canal bridge.
(3.) ON the other hand, learned Additional Advocate General, Punjab submitted that this is a case of a huge recovery of contraband item weighing 1050 Kgs. of poppy husk. The accused appellant was found in the conscious possession of said contraband, pursuant to a secret information received by the police and recorded vide the ruqa and FIR. Further, the recovery was effected only pursuant to the disclosure statement given by accused appellant Mewa Singh. Learned counsel also submitted that though there was a delay in sending the samples to the Chemical Examiner, but the seals were found to be intact and there was no complaint of tampering with. This is a further submission on behalf of the State that public witness Kaka Singh (PW4) has supported the prosecution case in part and he has no where stated that he did not know the accused from before. Besides, this was also submitted that the provisions of Section 57 of the Act are only directory in nature and their non-compliance did not cause a serious prejudice to the accused appellant. Similarly, taking of only one sample each from 30 bags has also not caused any prejudice to the rights of the accused. I have carefully considered the rival submissions and perused the appeal record.;