Balbir Singh vs State of Punjab

R.L. Anand, J. (Oral)

Shri Balbir Singh s/o Shri Baldev Singh has filed the present appeal which has been directed against the judgment and order dated 26.7.1996, passed by the court of the learned Sessions Judge, Hoshiarpur, who convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the NDPS Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. one lac. In default of payment of fine, the appellant was further directed to undergo R.I. for 3 years.

The story of the prosecution can be summarised in the following manner :

On 16.5.1994, SI Jaswant Singh, SHO Police Station Hariana, along with the other members of the police party was going on patrol in a Government vehicle; Gypsy No. PIR331. When the police party reached near the Cho Bariana at about 5.30 PM; the appellant was seen coming on a scooter bearing Registration No. PB 07A8630 from the opposite side. On the basis of suspicion, the appellant was apprehended. On interrogation, he disclosed his name as Balbir Singh s/o Baldev Singh, Jat, resident of village Bhalana, Police Station Hariana, District Hoshiarpur. SI Jaswant Singh before conducting the search upon the person and conveyance of the accused asked from him whether the accused wanted to give his search in the presence of a gazetted officer. Upon this, the accused told to the S.I. that he did not want to give his search in the presence of a gazetted officer and that SI Jaswant Singh, Incharge of the Police party might conduct the search as he had full confidence in him. An attempt was also made to join witnesses from the public but nobody could be associated. Thereafter, SI Jaswant Singh conducted the personal search of Balbir Singh in the presence of the other witnesses and from the left side pocket of the shirt, a sum of Rs. 100/ was recovered. From the search of the scooter, opium wrapped in the glazed paper was found lying in a gunny bag, which was lying in the basket of the scooter. The S.I. arranged the weights and scales at the spot and on weighing, the opium came to 15 Kgs. SI Jaswant Singh put the entire opium in a tin and made a sealed parcel by using his own seal bearing impression "JS". The scooter along with the currency notes was taken into possession vide separate recovery memo. The seal after use was entrusted to SI Harbhajan Dass. A wireless message was also sent to DSP Mohinder Singh Chahal with regard to the recovery of the opium, who reached at the spot. Accused could not produce any license or permit for the possession of the opium. Resultantly, Ruqa was sent to Police Station, Hariana, for the registration of the case through Constable Hari Kishan No. 1059. The S.I. completed the other formalities of the case at the spot and on return to the police station, the case property was handed over to the Moharrir Head Constable. Before depositing the case property, the DSP took two samples, weighing 10 grams each of the opium and sealed the same bearing inscription "MSC". The sample of the opium was sent to the office of the Chemical Examiner, who declared the contents as opium and on the completion of the other formalities of the investigation, the accused was challaned u/s 18 of the NDPS Act in the court of the Illaqa Magistrate who supplied the copies of the documents to the accused and vide commitment order dated 17.8.1994, committed the accused to the court of sessions. Vide order dated 26.8.1994, the accused was chargesheeted u/s 18 of the NDPS Act. The charge was read over and explained to the accused to which he pleaded not guilty and claimed a trial.

In order to prove the charge against the appellant, the prosecution examined PW1 Surinder Mohan Sharma, Registration Clerk, DTO Office, Hoshiarpur, PW2 SI Harbhajan Dass, PW3 SI Jaswant Singh, PW5 SP Mohinder Singh Chahal and PW6 HC Arun Kumar. The prosecution also tendered into evidence the report of the Director, Forensic Science Laboratory as Exh. PM besides the affidavits of the formal witnesses and closed the case.

The statement of the accused was recorded u/s 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those circumstances and states that he had been falsely implicated.

When called upon to enter his defence, the accused examined ASI Roshan Lal, ASI Gurdip Singh, SI Rajinder Singh, Arvind Sood, Handwriting Expert and Wattan Singh, as DWs 1 to 5, respectively.

The learned Sessions Judge believed the prosecution version in its entirety and rejected the defence story and convicted and sentenced the appellant in the manner stated above. Aggrieved by his conviction and sentence, the present appeal.

I have heard Mr. T.P.S. Mann, Advocate, counsel for the appellant and Mr. J.S. Brar, DAG, Punjab, on behalf of the respondent.

In para20 of the judgment, the trial court held as follows :

"On the second question that the provisions of section 50 were not complied with inasmuch as the offer made to the accused that he could be searched before a gazetted officer only was partial and, therefore, it should be inferred that the mandatory provisions of section 50 NDPS Act have not been complied with. Ex.PB is the memo, vide which the accused had been informed that he could be searched before a gazetted officer and there are no words that he could be searched before a Magistrate as well. No doubt, the offer made to the accused in the present case was partial but it has to be seen whether it was mandatory to make an offer that the accused could be searched before a gazetted officer or a Magistrate. The learned counsel for the accused has relied upon Mohinder Kumar v. State of Panaji, Goa, 1995(2) R.C.R. 599 . It has been held in this case that in case of chance recovery, provisions of sections 42 and 50 are to be followed from the stage when officer comes to believe that the accused persons were in custody of narcotic drugs. Reliance has also been placed upon State of Punjab v. Balbir Singh, 1994(1) RCR 736 . It has been held in this case that compliance of section 50 NDPS Act are mandatory. On the other hand, the learned P.P. has also placed reliance upon State of Punjab v. Balbir Singh, and has contended that provisions of section 50 are not mandatory in case where the police officer acts without prior information and provisions of section 50 are to be followed only from the stage where during search any narcotic drug is found. If the police officer himself it not empowered, he should inform the empowered officer who will proceed further in accordance with the provisions of NDPS Act and in case he himself is empowered, he should proceed in accordance with other provisions of the Act (ibid). Reliance has also been placed upon Krishan Lal v. State of Haryana, 1996 Criminal Law Journal 1401. It has been held in this case that if the police officer on patrol duty apprehends the accused with contraband articles, noncompliance of mandatory provisions of section 50 cannot invalidate the search and seizure.

A reading of the above para would show that the trial court had itself admitted that no doubt the offer made to the accused was partial but it has to be seen whether it was mandatory to make an offer that the accused could be searched before a gazetted officer or a Magistrate. Finally, the trial court, dealing with this aspect, came to the conclusion that since it was a case of chance recovery, the provisions of section 50 of the NDPS Act were not supposed to be complied with and in this regard the trial court relied upon the judgment reported as State of Punjab v. Balbir Singh, 1994(1) RCR 736.

The reasons adopted by the learned trial court are contained in para21 of the judgment, which reads as under :

"After hearing the parties and going through the judgments relied upon by them in Balbir Singh''s case (supra), Hon''ble Supreme Court had laid down guidelines where the provisions of section 50 are mandatory and where not. Both these judgments in Mohinder Kumar''s and Balbir Singh''s cases (supra) were discussed in the case of Krishan Lal (supra) and it was held that since in a case of chance recovery, the provisions of section 50 were not mandatory and, therefore, it need not be invoked. In the present case, it was a chance recovery when the police party on patrol duty had spotted the accused and apprehended him with the contraband articles and, in view of Krishan Lal''s case (supra), it was not mandatory for the prosecution to follow the provisions of section 50 inasmuch as the accused was not required to be searched either before a Magistrate or a gazetted officer. Therefore, the question No. 2 is answered accordingly."

Mr. Mann, learned counsel for the appellant vehemently submitted before this court that the judgment of the trial court cannot stand in the eyes of law in view of the mandatory provisions of section 50 of the NDPS Act. The counsel submitted that irrespective of the fact whether it is a case of chance recovery or recovery on the basis of secret information, the provisions of section 50 of the NDPS Act are supposed to be complied with and the learned trial Judge has not rightly appreciated the law laid down in the various authorities. In support of his contention, the learned counsel for the appellant has placed reliance on Mohinder Kumar v. The State, Panaji, Goa, 1995(2) RCR 599 , in which it was categorically held that the provisions of sections 42 and 50 of the NDPS Act are applicable even in the cases of chance recovery. If the judgment of the Hon''ble Supreme Court in Balbir Singh''s case (supra) is read in extenso, it will become clear that even the Hon''ble Supreme Court was pleased to hold that the provisions of the NDPS Act would be applicable from the stage as soon as the I.O. formulates a belief that some offending article under the NDPS Act is in the possession of an offender. In the present case, it can be said that the search of the vehicle belonging to the appellant was under Section 42 of the NDPS Act. The appellant was apprehended on the basis of suspicion and the S.I. formulated an opinion that the basket of the scooter contained some incriminating article like a narcotic drug or a psychotropic substance and for that reason, the search was supposed to be conducted. In these circumstances, section 50 of the NDPS Act would come into play because the search of the appellant was conducted under Section 42 of the NDPS Act.

Now, it is to be seen whether in the present case, the I.O. complied the provisions of section 50 of the NDPS Act or not. In this regard, the material document is Exh.PB, the so called consent memo. The first question which was posed to the appellant was Do you want your search or the search of your scooter conducted from a gazetted officer ? The answer was in the negative. The second question that was put to the accused by the S.I. Jaswant Singh was Do your repose confidence in me in searching you ? The answer was in the affirmative.

Section 50 of the NDPS Act enjoins a duty upon the Seizing Officer to give a complete offer in terms of section 50 of the NDPS Act, which gives two rights to a person to be searched, i.e. whether he wanted his search before a gazetted officer of any of the departments mentioned in section 42 of the NDPS Act or before a Magistrate. In the present case, the reading of Exh. PB would indicate that the I.O. limited the option only to a gazetted officer and not to a Magistrate. Had the appellant been informed that he had the right to be searched in the presence of a Magistrate, he would have loved to adopt the second remedy because he was apprehended by a police officer. Thus, by restricting the right of the appellant to be searched before a gazetted officer, a serious prejudice has been caused to him making the entire seizure illegal. Even otherwise, this court is not inclined to accept the story of the prosecution because there was ample opportunity on the part of the I.O. to associate some independent witness so as to lend confidence in the mind of the court about the genuineness of the recovery. The alleged arrest of the petitioner is at about 5.00 PM in the month of May, 1994. The appellant was found coming on a thoroughfare. The police party procured the assistance of a D.S.P. It also procured the scales and weights. Somebody must have gone to bring the scales and weights from a nearby place. At no point of time, the I.O. took the courage or courtesy to call for an independent witness so as to boost the confidence of the court that the recovery is genuine. Even in Balbir Singh''s case (supra), the Hon''ble Supreme Court has stated that if the mandatory provisions of the NDPS Act have not been complied with, the effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. The Hon''ble Supreme Court has further stated that if the dilatory provisions have not been complied with, still the court can see whether prejudice has been caused to the accused and whether such failure will have a bearing on the appreciation of evidence regarding arrest/seizure as well as on the merits of the case.

Reverting to the facts in hand; firstly, the I.O. has not complied with the provisions of section 50 of the NDPS Act and; secondly, he has confined the investigation to himself. He only invited the D.S.P. of his department and has virtually throttled the right of the appellant. The I.O. or even the D.S.P. did not take the courage to associate an independent witness so as to attest the recovery of the huge quantity of opium. "Graver the offence, stronger is the proof" is a fundamental principle of criminology. In the present case, the prosecution has failed to lead cogent, reliable or satisfactory evidence with regard to the charge framed against the appellant.

Resultantly, I extend the benefit of doubt to the appellant by setting aside the judgment and order of the trial court. The appellant stands acquitted of the charge. The case property shall stand confiscated to the State. So far as the scooter is concerned, it shall be returned to the appellant as it was recovered from him. Intimation about the acceptance of this appeal be sent to the jail authorities and the jail authorities are directed to release the appellant forthwith, if not required in any other case.