Amrit Singh vs State of Haryana

S.S. Sodhi, J.—The challenge in appeal here is to the conviction of the Appellant--Sub-Inspector Amrit Singh of the Uttar Pradesh Police

u/s 18 of the Narcotic Drugs and-Psychotropic Substances Act. 1985 (hereinafter referred to as ''the Act''), for being found in possession of 4

kilograms of opium.

According to the prosecution at about 5 P.M. on March 1, 1986, when Sub-Inspectors Narpat Singh and Joginder Singh along with other

police officials were out on patrol near the bus-stand Panipat, they saw the Appellant--Sub-Inspector Amrit Singh carrying a brief-case coming

from the Southern Gate of bus-stand Seeing the police party, he retreated, whereupon suspicion was aroused and the police party then over-

powered him near the gate. Amar Singh Lambardar of village Dhansauli also happened to come there at that time. On search of the brief-case,

four kilograms of opium was recovered.

The present case came to be, registered at police station ''City'' Panipat on the report of Sub-Inspector Joginder Singh regarding, the

apprehension and search of the Appellant--Amrit Singh and the recovery from him of the said four kilograms of opium. The first information report

recorded thereon being; exhibit PC/1.

The case of the prosecution rests upon the testimony of P.W.1 Sub-Inspector Narpat Singh and P.W.2 Sub inspector Joginder Singh. Roth

these, witnesses, deposed in a similar fashion namely; that they saw, the Appellant coming from, inside the bus-stand holding a, brief-case exhibit

P/1 in his hand. Seeing the police party, he tried to reference his steps upon which they became suspicious and apprehended him. Amar Singh

Lambardar, who-happened to be present at the bus-stand also joined them. Sub-Inspector Joginder Singh, after offering himself for search,

informed Amrit Singh that if he so desired, his search would be carried out in the presence of & gazetted officer. Amrit Singh, however, declined

this offer and he was thereafter searched. It was from the brief-case exhibit P/1 that the Appellant was carrying, that four kilograms of opium

wrapped in a wax paper was recovered. 25 grams of opium was taken from it as a sample and the opium was thereafter sealed.

When examined u/s 313 of the Code of Criminal Procedure, 1973, Amrit Singh denied the prosecution case and pleaded innocence. It was

specifically stated by him that at the time of his arrest, he had asked the police party to conduct his search in the presence of a gazetted officer, but

this was not acceded to.

Further, it was stated by the Appellant Amrit Singh that he had gone to village Sanauli on February 28, 1986 to meet Hari Krishan and Rattan

Lai in whose family the son of his friend had been married. There were differences between the spouses and he had gone there to get these

differences sorted out. They did not, however, agree to his proposal and he then told them that it would lead to no good result if they did not send

their daughter to the house of bridegroom. He then came to Panipat to go on to Agra and at about 10 A.M. when he was at the bus-stand Panipat.

Inspector Sowarn Singh caught him and took him in a car to C.I.A. Karnal where he was falsely implicated in this case.

In defence, four witnesses were examined. The testimony to note is that of D.W.1 Bhale Ram Moharrir Head-Consteble of police Station

''City'', Panipat who deposed that the case property of the present case came to him from the C.I.A. Staff Karnal on March 17, 1986 while D.W.

4 Hukam Singh stated that at about 10 A.M. a year-and-half ago, he was standing outside the gate of police station ''Saddar'' Panipat when he

heard some noise between Amrit Singh and Inspector Sowarn Singh. Hearing this noise, he went there and saw Amrit Singh saying that he was a

police inspector and asking why he was being harassed. The Appellant was then taken in a car and when he enquired from Inspector Sowarn

Singly he was told that the Appellant was only to be interrogated. The car was then taken towards Karnal. About 2 to 3 months after this incident,

Amrit Singh met him in the court compound at Panipat and on enquiry he told him that he had been falsely implicated in some opium case, but had

not been told of the quantity of opium attributed to him. He then disclosed his name to the Appellant and under-took to depose in his favour about

the true facts as seen by him.

The learned trial Judge, after taking into account, the material on record, convicted the Appellant u/s 18 of the Act and sentenced him to 14

years'' rigorous imprisonment and a fine of Rs. 1,00,000.

The stringent minimum punishment prescribed by the Act, namely; ten years'' rigorous imprisonment and fine of Rs. 1,00,000 renders it

incumbent upon the court to weigh with due care and caution, the evidence brought on record, by the prosecution to establish its case against a

person charged of having committed an offence under this Act.

It will be seen that both the witnesses to the apprehension, search, and recovery of the opium from the Appellant Amrit Singh are police

officials. The sole independent witness associated by them, at the relevant time, was not examined. He was given up as having been won over. It

would further be pertinent to note that the presence of this witness Amar Singh Lambardar was, on the face of it, a purely chance visit there. He

being of village Dhansauli.

The law is, of course, well settled that the testimony of a witness is not to be doubted or looked upon with suspicion merely because he

happens to be a police official, hut, it is, at the same time, a very well-recognized rule of caution, adopted by the courts, to look for corroboration

to the testimony of such witnesses by independent witnesses, particularly, when the time, place and circumstances are such that independent

witnesses are easily available. In the present case, as mentioned earlier, the place of apprehension and search of the Appellant was the bus-stand.

Admittedly, there were number of persons present there at that time. What is more, nearby was also an Octroi Post. No effort was made to

associate any person from the locality whose presence there, at that time, could be said to be natural and probable.

The other curious feature of this case is that the recovered opium was taken to C.I.A. Staff Karnal and not to police station ''City'' Panipat

which was only about 60 yards from the place of recovery. No explanation to account for this is forthcoming. Here, a reference to the provisions

of Sub-section (3) of Section 52 of the Act would show that both the person arrested as also the article seized are required to be forwarded to the

Officer Incharge of the nearest police station. It was obviously in clear disregard of this provision of law that both the Appellant and the recovered

opium were taken to the C.I.A. Staff Karnal rather than to police station ''City'' Panipat. It was only on March 17, 1986 that as per the testimony

of D.W-1 Moharrir Head Constable Bhale Ram that this opium was deposited in this police station.

While considering this aspect of the case, it must be observed that reference to the affidavit of Head Constable Ram Bhaj exhibit PF/1 makes

interesting reading, in that, all it mentions, is regarding the deposit of a sample of 25 grams of opium. The material on record is silent with regard to

the remaining quantity of opium said to have been recovered from the Appellant at that time) except regarding its deposit at police station ''City''

Panipat on March 17, 1986.

The most glaring and serious flaw, however, in the prosecution case, is with regard to the manner of the search of the Appellant-Amrit Singh, in

the context of the provisions of Section 50 of the Act. A reading thereof would show that if any person to be searched so requires, he has to be

taken to a gazetted officer or to the nearest magistrate and then searched in his presence. According to both the P.W-1, Sub-Inspector Narpat

Singh and P.W.2-Sub-Inspector Joginder Singh, such option was given to the Appellant, but was declined by him. In other words, this safeguard

provided by Section 50 of the Act is said to have been waived by the Appellant and all we have to prove this is the word of two police officers.

The provisions of Section 50 of the Act are mandatory in terms and it also stands so settled by judicial precedents, one of which is provided

by the judgment of this Court in Hakam Singh v. Union Territory 1988 (2) CLR 75. Reference may here also be made to the judgment of the

Division Bench of the High Court of Himachal Pradesh in State of Himachal Pradesh v. Sudarshan Kumar 1989 (2) CLR 240, where, it was held

that the person about to be searched must be informed of his right, u/s 50 of the Act, to be searched in the presence of a Magistrate or a Gazetted

Officer. Violation of this provision, it was held, would per se be fatal to the prosecution case. Further, it was observed that such offer, should as far

as practical be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the

onus would be on the prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case.

In dealing with the provisions of Section 50 of the Act, it cannot, but be observed that, it would be rendering them negatory if the safeguard

provided thereby, to the person apprehended, to be searched in the presence of a gazetted officer or magistrate, can be brushed aside on merely

the bald statement of a police officer, that such offer was declined by him. As is well-known, the legislature has always been somewhat wary of

accepting statements made to the police, as would be apparent from the provisions of Section 162 of the Code of Criminal Procedure, whereby

statements made by an accused to the police, in the course of investigation, are made inadmissible and if such statement is a confession, it is also hit

by Section 25 of the Evidence Act. The Provisions of Section 50 of the Act have thus to be construed in this context. To give meaning and content

to the clear legislative intent underlying the safeguard provided by Section 50 of the Act, cogent and reliable evidence? and not merely the

statement of a Police Officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the

presence of a gazetted officer or magistrate, but he chose to decline this offer. In Sudarshan Kumar''s case (supra), it has no doubt been suggested

that such offer should be made before two reliable and independent witnesses, but with respect, it would be appropriate and more in consonance

with the interest of justice that as a rule of general practice, the person apprehended should be taken before a gazetted officer or magistrate and

searched in his presence. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Search otherwise than

before a gazetted officer or magistrate should, therefore, be the exception and that too for sound and convincing reasons founded upon reliable

material on record. The onus of showing that the person to be searched declined such option being upon the prosecution.

Seen in this light, there can be no escape from the conclusion that violation of the provisions of Section 50 of the Act, in the case of the

Appellant--Amrit Singh, stands writ large. This and the other circumstances, as pointed out earlier render the conviction of the Appellant wholly

unsustainable and it is accordingly hereby set aside. The bail bonds of the Appellant, who is on bail, are hereby discharged and the fine, if paid, is

ordered to be refunded to him. This appeal is consequently hereby accepted.