Balwant Rai vs State of Punjab

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 8.8.1997 passed by Additional Sessions Judge, Sangrur who convicted the appellant under section 15 N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac and in default of payment of fine, he was directed to undergo R.I. for 2 years.

Briefy, the prosecution case is as under :

On 24.9.1994 ASI Sampuran Singh, alongwith ASI Surinder Pal Singh, Head Constable Satnam Singh, C II Harinder Singh and other police officials in Government No. PB.13B/7003 accompanied by its driver Constable Baljit Singh, during the patrol duty and checking of bad elements, was present in village Ahan Kheri, ASI Sampuran Singh received secret information that Balwant Rai present appellant resident of Dhadogal was selling poppy husk in whole sale and on preceding night near the Tibbas in village Faridkot Kalan from a tempo bags of poppy husk were alighted and the accused was waiting for the customers and if a raid is conducted accused could be apprehended and poppy husk in large quantity could be recovered from him. On receipt of this secret information, Shri Pritpal Singh, Superintendent of Police, Malerkotla was requested through the wireless message to reach the spot. Lal Singh son of Mall Singh, Chowkidar of village Ahan Kheri was joined in the Police Party and then the police party reached near the Tibbas and surrounded the accused who was sitting on the bags. Whereabouts of the accused were enquired. In the meantime, Shri Pritpal Singh Virk, S.P. Malerkotla with his Reader and Gunman reached the spot in a Gypsy. In his presence ASI Sampuran Singh opened the mouths of the bags and found the bags were containing poppy husk and total number of bags was 15. The poppy husk of all the bags were spread on a polythene cloth and mixed up and then two samples each weighing 500 gms were taken out and the remaining poppy husk was put back in the same bags and each bag contained 37 kilograms of poppy husk. The samples and the bags were sealed by Sampuran Singh with his seal bearing impression "SS" and samples seal Ex.P.1 was prepared. The seal after use was handed over to ASI Surinder Pal Singh. One of the second samples is Ex.P.2. The samples, Polythene cloth and the bags were taken into possession vide recovery memo Ex.PA which was signed by Shri Pritpal Singh, S.P., ASI Surinder Pal Singh and chowkidar Lal Singh. On personal search of the appellant a sum of Rs. 200/ was recovered from the pocket of the shirt of the appellant which were taken into possession vide recovery memo Ex.PB. Ruqa Ex.PC was sent to the Police Station through constable Jarnail Singh on the basis of which formal FIR Ex.PC/1 was recorded by ASI Rajinder Kumar. ASI Sampuran Singh prepared rought site plan Ex.PC and recorded the statement of the witnesses. On reaching back in the Police Station he deposited the samples, sample seal and bags with MHC Gurmail Singh. Thereafter sample parcel was sent to the office of the Chemical Examiner, Chandigarh and on receipt of its report Ex.PH challan was prepared and presented in the court of the Area Magistrate who supplied copies of the documents to the accused as required under law and vide commitment order dated 2.1.1995 committed the accused to the court of Sessions to face trial.

Vide order dated 28.1.1995, the appellant was chargesheeted on the allegations that on 24.9.1994 in the area of village Faridpur Kalan, he was found in possession of 15 bags each containing 37 Kgs. of poppy husk without any permit or licence and thereby committed an offence punishable under section 15 of the N.D.P.S. Act. The charge was read over the explained to the accused to which he pleaded not guilty and claimed trial.

In order to prove its charge, prosecution examined ASI Surinder Pal Singh as PW.1, Shri Pritpal Singh Superintendent of Police as PW.2, ASI Sampuran Singh (PW.3), H.C. Nirbhai Singh (PW.4) gave his statement on affidavit Ex.PE, ASI Gulzar Singh (PW.5) proved final report under section 173 Cr.P.C., and H.C. Gurmail Singh (PW.6) gave his statement on affidavit Ex.PF. Finally the prosecution tendered in evidence report of the Chemical Examiner.

On closure of the prosecution evidence, statement of the accused was recorded Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and stated as follows :

"I am innocent. I was running a commission agents shop in village Dhadogal in the year 1987. Dhan Singh and Hakam Singh sons of Harnam Singh residents of Dhadogal had borrowed a sum of Rs. 18,000/ from me, as they used to bring their produce on my shop. ASI Amar Singh is the brotherinlaw of Hakam Singh. When I demanded the above amount from Hakam Singh etc. they refused to return back the amount of Rs. 18,000/. Then in the year 1990, ASI Amar Singh, ASI Sampuran Singh and SI Shamsher Singh, brought me in P.S. Dhuri and I was involved in a false case. My relatives then filed a writ petition in the Hon''ble High Court of Punjab and Haryana and the Warrant Officer was appointed in that writ and the Warrant Officer found myself, Roop Singh and Sajjan Singh in the illegal detention of P.S. Dhuri and the Hon''ble High Court imposed a fine of Rs. 5,000/ upon SI Shamsher Singh for the illegal detention. Due to this reason the above police officials were inimical with them and then SI Shamsher Singh got arrested me in P.S. Malerkotla and involved me in this false case. My brother had filed application in the Court on 23.9.1990 regarding this false implication. I was detained in the P.S. on 23.9.1990 and on 24.9.1990. I was falsely involved in this case. I am innocent."

When called upon to enter his defence, the accused did not lead any evidence.

Learned Trial Court believing the prosecution story and rejecting the defence version, convicted and sentenced the appellant in the manner stated above. Feeling aggrieved against his conviction and sentence, the present appeal.

I have heard Shri B.S. Bhasaur, learned counsel for the appellant and Shri G.S. Gill, learned D.A.G. Punjab on behalf of the State and with their assistance gone through the record of this case.

Frontal argument which was raised by the learned counsel for the appellant in this case is that Section 50 has not been complied with at all and in these circumstances, recovery of the alleged poppy husk from the possession of the accused stands vitiated. Learned counsel submitted that the police had specific information with it that the appellant was indulging in the trade of poppy husk and in these circumstances the provisions of Section 50 stand attracted from that stage when the secret information was received by the Investigating Officer. The learned counsel submitted that though the Superintendent of Police had been associated before taking search of the bags but neither the Superintendent of Police nor the Investigating Officer recorded the statement of the appellant to the effect as to whether he wanted to give search in the presence of the Gazetted Officer or Magistrate. In this view of the matter, the appellant is entitled to acquittal on this score. On the contrary Shri Gill submitted that Section 50 in this case is not applicable because recovery of the poppy husk has been seized from the bags and not from the personal search of the accused. Secondly the Supreintendent of Police was already in the Police Party and he was summoned by the Investigating Officer and in his presence search had been taken and no prejudice has been caused to the appellant. Mr. Gill also submitted that there is huge recovery of 15 bags of poppy husk and it cannot be easily stated that this huge recovery has been planted upon this appellant.

I have considered the submissions raised on behalf of the learned counsel for the parties. I am of the considered opinion that Section 50 in this case has not been complied with. It is specific case of the prosecution that the Investigating Officer received secret information that the appellant was dealing in trade of poppy husk. In this view of the matter, it was obligatory on the part of the Investigating Officer to comply with the provisions of Section 50 of the N.D.P.S. Act. This provision has been introduced in the Act for the benefit of the person to be searched. When the Legislature prescribes a particular provision and also lays down application of that provision such provision has to be complied with in a particular manner. A reading of the N.D.P.S. Act would show that a right has been conferred on the person to be searched whether he wanted to give personal search in the presence of the Gazetted Officer or a Magistrate as mentioned in Section 42 of the N.D.P.S. Act. In these circumstances, it was obligatory on the part of the Investigating Officer to place all his cards before the person to be searched, to pick up any card which he wants. Merely association of the Superintendent of Police in the Police Party does not absolve the Investigating Officer of his duty under Section 50 N.D.P.S. Act. This point was considered from time to time by the High Court in various pronouncements. First of all I would like to refer to 1997(4) R.C.R. 657 Jarnail Singh v. State of Haryana . The argument, was raised on behalf of the State that the police party constituted Superintendent of Police (Gazetted Officer) in whose presence search was conducted therefore Section 50 would not apply. This arguments did not find favour with the Lordship who answered the proposition as follows :

"The presence of the Gazetted Officer namely, M.S. Ahlawat, the Superintendent of Police, at that time, will not make any difference, is also clear from the decision of this court in Teja Singh''s case (supra). That was also a case where the poppy husk was recovered from the car driven by the accused. This court held that the mere presence of the Gazetted Officer is not sufficient and the accused will have to be informed of his right to be searched in the presence of a Magistrate, relying upon the decision of this court in Kulwant Singh''s case (supra)."

The case of Teja Singh has been reported as 1996(2) R.C.R. 754 and case of Kulwant Singh has been reported as 1995 (Vol.22) Criminal Law Times 494. In 1998(4) RCR (Crl.) 204 : 1998(3) R.C.C. 732 Mangal Singh v. State of Haryana this point has been discussed by this Court. In the above said case Executive MagistratecumTehsildar was already in the police party but the compliance of Section 50 of the N.D.P.S. Act was not done and the court held that the presence of the Executive Magistrate or Tehsildar will not enhance the case of prosecution because neither the Investigating Officer nor the Gazetted Officer complied with the provisions of section 50 of the N.D.P.S. Act. The matter was further considered by the Division Bench. The authority is reported as 1998(4) RCR (Crl.) 477 : 1998 Criminal Law Journal 4796 Lakhbir Singh v. State of Punjab . It was laid down by the Hon''ble D.B. that if there is no evidence to show that the option to be searched in front of Gazetted Officer or Magistrate was given to him before conducting search, it would amount to noncompliance of Section 50 of the N.D.P.S. Act. In the present case the Investigating Officer did not serve any notice either orally or in writing upon the appellant. His statement was not recorded. In this view of the matter, I am of the considered opinion that on account of noncompliance of the Section 50 N.D.P.S. Act, the appellant is entitled to acquittal on this ground.

Mr. Gill, learned D.A.G. submitted that section 50 is not applicable. I am not in a position to accept this argument. Though Section 50 uses the word "person" but the word "person" has to be given its widest import and limited interpretation sought by the DAG would make the very provision of Section 50 nugatory. To repel the contention of Mr. Gill, an illustration can be given. Supposing a person is going on a public road and he is carrying a bag in his hand which contains narcotic substances. In this situation according to Mr. Gill, Section 50 will not apply. This argument is not legal nor it stands to its logic. The word "person" has to be read in conjunction with possession of a narcotic drug. If a person is in conscious possession of the narcotic drug whether he is carrying in his bag, pocket or is lying in drawer or almirah of house and in these eventualities, it will amount to an offence for the purposes of Section 15 or 18 of the N.D.P.S. Act. In all these situations the provisions of Section 50 is mandatory. This point was discussed by the Hon''ble D.B. in 1998(1) R.C.R. 33 Shiv Kumar v. State of Haryana . In this case seizure was made from search of the house and not from personal search of the accused. Argument was raised on behalf of the appellant that provisions of Section 50 have not been complied with. The Hon''ble D.B. after relying upon Mohinder Kumar v. The State of Panaji, 1995(2) R.C.R. 599 and State of Punjab v. Kulwant Singh, 1994(1) R.C.R. (Crl.) 303 came to the conclusion that Section 50 would apply irrespective of the fact that search has been conducted from the house of the person.

Meeting the third argument which was raised by the learned D.A.G. that heavy quantity of poppy husk has been recovered in this case, therefore, story of the prosecution should be believed. The argument is off the track. We are dealing with the situation where the mandatory provisions of Section 50 have not been complied with which are mandatory, the consequences for the prosecution is very fatal as laid down by the Supreme Court in a famous case State of Punjab v. Balbir Singh, 1994(1) R.C.R. 736 .

From the above discussion, I have come to the conclusion that mandatory provisions of Section 50 have not been complied with in this case. Resultantly, this appeal is allowed. Impugned judgment and order of the learned Trial Court is set aside and the appellant is acquitted of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to rules. Let intimation of acceptance of this appeal be sent to Superintendent, Central Jail, Ludhiana so that the appellant may be released forthwith if not wanted in any other case.