Bachan Lal vs State of Punjab

S.S. Grewal, J. (Oral)

Bachan Lal appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000.00. In default of payment of fine he was ordered to undergo further rigorous imprisonment for four years, vide, order of Additional Sessions Judge, Faridkot, dated 9.10.1986.

Bachan Lal appellant was also tried under Section 25 of the Arms Act for recovery of one country made .303 bore pistol and two live cartridges of the same bore and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100/. In default of payment of fine he was ordered to undergo further rigorous imprisonment for one month. The period already undergone in custody during the investigation and trial in both the cases were ordered to be set off. The sentence of imprisonment passed in this case was ordered to run concurrently with the sentence of imprisonment passed for the recovery of contraband opium against the petitioner. Aggrieved against the orders of conviction and sentence in both the cases Bachan Lal appellant filed two jail appeals i.e. Crl.A. No. 74 and 75SB of 1987. Since common questions of law and fact are involved, both the appeals shall be disposed of by one order.

In brief facts of the prosecution case are that on 19th of November, 1985, police party headed by ASI Avtar Singh intercepted the appellant in the area of village Hari Nau. From the search of the Jhola carried by the appellant in his right hand 5 Kgs. of opium wrapped in a glazed paper was recovered. After taking sample both the samples and the remaining bulk of contraband opium was separately sealed and taken possession through seizure memo. On personal search of the appellant one .303 bore country made pistol was recovered from the dub of the pant worn by the appellant whereas two live cartridges were recovered from the pocket of the shirt worn by the appellant. The country made pistol and the live cartridges were taken into possession vide seizure memo. After completion of the investigation, the appellant was challenged in both the aforesaid cases, tried, convicted and sentenced as detailed above.

The learned counsel for the parties were heard.

The learned counsel for the appellant submitted that on 19th of November, 1985 i.e. the date on which contraband opium was allegedly recovered from the appellant by ASI Avtar Singh, the said ASI was not legally authorised to conduct search or seizure of the said contraband opium from the possession of the appellant. There is considerable merit in the contention raised by the learned counsel for the appellant. An Assistant Sub Inspector of Police was authorised to exercise powers and perform the duties specified under Sections 42 and 67 within the areas of their jurisdiction vide Punjab Government Gazette Notification No. S.O.33/C.A.61/05/Ss. 42 and 67/871 dated 3.9.1987 published on 11.9.87. Under Section 42 of the Act, it is obligatory that only officer above the rank of Assistant Sub Inspector of Police as is empowered in this behalf by the general or special order of the State Government is authorised to conduct search or seizure of contraband articles under the Act. Since ASI Avtar Singh was not legally authorised to conduct search or seizure as contemplated under Section 42 of the Act, the alleged recovery of opium in this case on 19th November, 1985 cannot be legally sustained. Such recovery also violates the mandatory provisions of Section 50 of the Act. The conviction and sentence passed against the appellant under Section 18 of the Act is set aside and giving the benefit of doubt, the appellant is hereby acquitted of the said charge.

As far as the case under the Arms Act is concerned, it was submitted that no independent witness was associated by the police party and it would not be safe to place implicit reliance on the testimony of the official witnesses who would naturally be interested in the success of their case. The argument is devoid of any merit. The appellant met the police party (which was on patrol duty) per chance. There is no legal, cogent or reliable evidence on the record that any other personal search of the Jhola carried by the appellant when 5 Kgs. of opium was recovered or at a later stage when from personal search of the appellant one country made .303 bore pistol from his dub and two live cartridges from his pocket was effected. Nonassociation of any independent witness in view of the facts and circumstances of the present case would not attach any taint to the testimony of the official witnesses whose testimony is otherwise credible and trustworthy and finds independent corroboration from the recovery of pistol and two live cartridges from the possession of the appellant, who has rightly been convicted and sentenced by the trial Court under Section 25 of the Arms Act.

For the foregoing reasons, Criminal Appeal No. 74SB of 1987 is allowed and the appellant is acquitted of the charge under Section 18 of the Act whereas maintaining the order of conviction and sentence passed against the appellant under Section 25 of the Arms Act, Criminal Appeal No. 75SB of 1987 is hereby dismissed.