Bal Vinod vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by appellant Bal Vinod directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Kurukshetra dated 11.10.1993 and 12.10.1993 respectively. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter described as ''the Act'') and by the subsequent order of sentence, he was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for two years.

The facts of the prosecution case in brief are that on 28.2.1992 SI Jeet Kumar was posted as Officerincharge, Police Station, Government Railway Police Station, Kurukshetra. On that day at 7.17 P.M. he alongwith Sudhir Kumar Sharma, Excise Inspector, HC Hori Lal and other police officials namely HC Ranjit Singh, HC Sube Singh and Constables Jagdish, Ramesh Kumar and Om Pal were present at Platform No. 2, Railway Station, Kurukshetra. They had assembled there for checking of bad characters and smugglers. At 7.17 P.M. Train No. 4098 Down ''Himalyan Queen'' arrived at Platform No. 2. Two persons stepped from the compartment and sat on the bench located near Railway Bridge. One of them disclosed his name as Bal Vinod and Mangat Ram. SI Jeet Kumar enquired as to if they wanted their person to be searched before a Gazetted Officer. The answer was in the affirmative.

HC Sube Singh was sent to call Ramesh Kumar Sharma, Excise and Taxation Officer. Ramesh Kumar Sharma alongwith Sube Singh HC arrived at the platform at 7.45 P.M. At his direction, the person of the appellant was searched by SI Jeet Kumar. The appellant was having a cotton belt tied around his waist. It was checked and found to be containing Charas weighing 1 Kilogram. 25 grams was taken as the sample. The representative sample and rest of the Charas were converted into separate parcels and sealed with the seals of ''JK'' and ''RKS''. Both the packets were taken into possession vide a recovery memo.

The site plan was prepared. Ruqa was sent to the police station through C. Ramesh Kumar. HC Jeet Ram recorded the formal first information report. The articles recovered including the sample were deposited in the Malkhana. Subsequently the representative sample was sent for the report of the Chemical Analyst. It was found to be charas. This led to the filing of the challan against the (sic).

The learned trial court framed a charge against the appellant for the offence punishable under Section 20 of the Act to which he pleaded not guilty and claimed a trial. In support of its case, the prosecution examined five witnesses which included PW4 Ramesh Kumar Sharma, Excise and Taxation Officer, PW5 Jeet Kumar Sub Inspector, the witnesses pertaining to the recovery of Charas and other corelated proceedings. The evidence of the prosecution was put to the appellant in the form of different questions when he was examined in terms of Section 313 of the Code of Criminal Procedure. The appellant denied recovery of Charas from his person. He stated that as a matter of fact he is a victim of terrorism spread in Jammu and Kashmir. Alongwith certain youths he had gone to Delhi in a search of job. He had lost whatever money he had. They could not even purchase a ticket. Before the train could reach Kurukshetra, the Ticket Examiner had come. They narrated their woes to him. The Ticket Examiner abused them. Thereupon a quarrel took place and he was falsely implicated.

The learned trial court on appraisal of the evidence held that the statutory provisions of the Act were complied with and further that it has been established by the prosecution beyond all reasonable doubt that charas was recovered from the person of the appellant. This led to the recording of the order holding that appellant guilty of the offence followed by the order passed on the quantum of sentence. Hence, the present appeal.

Learned counsel for the appellant urged that no option was given to the appellant in terms of subsection (1) of Section 50 of the Act and even otherwise the prosecution evidence itself reveals that a partial option was given that if the appellant likes his person can be searched before a Gazetted Officer. There was no option given that if he likes his person can be searched before a Gazetted Officer or a Magistrate.

Subsection (1) of Section 50 of the Act reads :

"50(1). When any officer duly authorised under Section 15 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate."

The relevant portion reproduced above shows that it is the right of the concerned person that if he likes his person can be searched before a Gazetted Officer or a Magistrate. In the well known decision in the case of State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 736 : 1994(3) SCC 299 it has categorically been held that provisions are mandatory and noncompliance of the said provisions vitiates the search. The evidence of SI Jeet Kumar reveals that appellant was simply informed that if he likes his person can be searched in presence of a Gazetted Officer. There is no option given to the appellant that if he likes his person can be searched before a Gazetted Officer or a Magistrate. This was a vital omission. It resulted in loss of a valuable right. The net result which affects the search is that the appellant could not effectively exercise the said right. The option was partial and consequently it would vitiate the search. A similar question arose for consideration in Criminal Appeal No. 548SB of 1994 titled Jaspal Singh v. State of Punjab, decided on 2.5.1996 and it was held that when it is a partial option, it is noncompliance of subsection (1) of Section 50 of the Act and would vitiate the search.

In addition to that a material fact highlighted and which cannot be lost sight of is that no public witness was joined before effecting the search. It transpires in the statements of Ramesh Kumar Sharma PW4 and also of SI Jeet Kumar PW5 that there were large number of persons moving on the railway platform including the ticket collectors. There were other persons that had collected there. None of them were joined in the search that was to be effected. It is not a case where attempt to join public witnesses was made or that they were not available. A genuine attempt must always be made to join public witnesses. That seemingly has not been done. Though joinder of public witnesses is not always mandatory but when they are available, then unless cogent reasons are forthcoming, they must be joined. It has not been done. It makes the search suspicious. The appellant is entitled to the benefit of doubt.

For these reasons, the appeal is accepted. The judgment and the order of sentence passed by the learned trial court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released if not required in any other case.