Balwinder Singh vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Balwinder Singh (hereinafter described as the appellant) directed against the judgment and order of sentence passed by the Additional Sessions Judge, Sirsa dated 7.1.1995. By virtue of the impugned judgment, learned trial Court held the appellant guilty of the offence punishable under section 17 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as the ''Act''). By the subsequent order of sentence dated 9.1.1995, the appellant was sentenced to undergo R.I. for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was to undergo further R.I. for two years.

The relevant facts are that on 16.6.1993, Sub Inspector Bhoja Ram was Officer Incharge, P.S. Baragudha. Alongwith A.S.I. Prem Singh and two Constables, he reached the bus stop of village Panjuana in his official vehicle. Secret information was received that the appellant, resident of village Sahuwala deals in opium and he would be going to Dhanis in the fields for sale of the same. On receipt of this information, wireless message was given to Jagdish Nagar, D.S.P. Headquarters, Sirsa. He came there in his official vehicle.

The raiding party went to village Sahuwala towards the house of the appellant. When they reached near the house, the appellant with a plastic bag on his right shoulder came out of his house. On seeing the police party. he turned back, but was apprehended. The bag was searched. It contained opium wrapped in polythene paper. 50 gms. was taken as sample. Rest of the opium was found to be 850 gms. Sample and rest of the opium was converted into two parcels and sealed with the seals of ''BR'' (Bhoja Ram) and ''JN'' (Jagdish Nagar). Both the packets were taken into possession.

During the proceedings, many public persons were asked to join, but they showed their inability to join. Ruqa was sent to the police station. Formal F.I.R. was recorded, sample alongwith rest of the opium was deposited in the Malkhana. Subsequently sample of opium was sent for chemical analysis. Report was received that it contained opium. This resulted in filing of the challan against the appellant.

Learned trial Court framed the charge against the appellant for the offence punishable under section 17 of the Act. Appellant pleaded not guilty and claimed trial. In support of its case, the prosecution examined 5 witnesses which included A.S.I. Prem Singh, PW3, Jagdish Nagar, D.S.P. PW4, Inspector Bhoja Ram, PW5. They all pertain to the recovery of opium from the person of the appellant. Their testimonies have to be considered hereinafter. The incriminating evidence was put to the appellant in the form of different questions. He denied the recovery of opium from his person and insisted that nothing the was recovered from him. According to him, some complaints were filed against the police by the mother of Mukand Singh. The police suspected the hand of the appellant. He was called to the Police Station. Gurdip Singh and Darshan Singh had accompanied him. Later on he was falsely implicated.

In defence, the appellant examined Darshan Singh D.W.1. the witness stated that he knew the appellant. The police took Mukand away. His mother had given certain telegrams. She had gone with the appellant to the police station and the police had assured that he would be released. Subsequently appellant was implicated in this case. Gurdip Singh, DW5 also made a similar statement, which requires no repetition. Ram Piari DW6, mother of the Mukand also stated that appellant was taken. He had gone with him and later on sent the telegram regarding taking of the appellant by the police.

In addition to that, Karan Singh, Naib Moharrir DW2 was examined. He had brought the roznamcha and added that in DDR No. 19 names of withnesses have not been mentioned. He had also brought register No. 19. There was no entry of deposit of any case property in FIR 97 of 1993 nor there was any mention of deposit of F.S.L. form. Constable Krishan Kumar DW3 had brought the log book of Jeep No. HR246400 and stated that as per the entries, the jeep left the police station at 2.45 p.m. and returned at 9.30 p.m. Lastly Constable Rajinder Singh, DW4 was the driver of the jeep of the Dy. Superintendent of Police, Dabwali. He had brought the log book dated 16.6.1993. As per the entries made, the D.S.P. started in the jeep at 12 noon and had gone from Sirsa to P.S. Baragura, Sahuwala, Buppa, Thiraj.

On appraisal of this evidence, learned trial Court held that provisions of Section 42 and 50 had been complied with. It has been established that opium was recovered from the possession of appellant and consequently with these basic findings, the appellant was held guilty of the offence punishable under section 17 of the Act. JUDGMENT of sentence followed.

The evidence of the prosecution pertaining to the recovery of the alleged opium revolves around the statement of DW3 ASI Prem Singh, DW4 Jagdish Nagar, D.S.P. and P.W.S 5. Inspector Bhoja Ram. ASI PW3 testified about the secret information having been received by Inspector Bhoja Ram that appellant is likely to go in the fields with opium. Thereupon D.S.P. was intimated, who reached the spot. He further proceeds and adds that after the D.S.P. came, the appellant was rounded up. He was carrying a bag. It was searched in the presence of the D.S.P. which contained 900 grams of opium. In similar terms was the statement made by D.S.P. Jagdish Nagar, PW4 and Inspector Bhoja Ram, P.W.5.

This evidence prompted appellant''s learned counsel to argue that provisions of Subsection 1 to Section 50 of Act have not been complied with. He urged that no offer was given to the appellant that if he likes, his person can be searched before a Gazetted Officer of a Magistrate. The answer of the learned Stated counsel was that it was not necessary because the Gazetted Officer had been called and was present.

The said plea of the learned State counsel has to be repelled because in the case of State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : 1994 Judgments Today 108 , the Supreme Court categorically held that provisions of subsection 1 to Section 50 of the Act are mandatory. The concerned person must be informed of his right to be searched before a Gazetted Officer or a Magistrate. The question as to if when Gazetted Officer would be present and its effect was considered by Division Bench of this Court in the case of Kulwant Singh and another v. Assistant Collector Customs, 1996(1) Chandigarh Criminal Cases 142. Therein also a Gazetted Officer was present, but, the accused was not informed of his right contemplated under Subsection 1 to Section 50 of the Act. Upholding the contention of the accused appellant, the Division Bench held as under:

"We have heard the learned counsel for the parties and find that in the light of the object behind section 50 of the Act, the compliance with its provisions is to be strictly made. In State of Punjab v. Balbir Sing, J.T. 1994 (S.C.) 108, the Hon''ble Supreme Court while construing this Section held it to be mandatory and observed that the provisions give a valuable right to an accused to be given a choice (if he so required) to be searched in the presence of a Gazetted Officer or a Magistrate as such a search would impart much more authenticity and creditworthness to the proceedings while equally providing important safeguard to the accused. The Court further observed that the language of the Section was clear and the provision implicitly made it obligatory on the authorised officer to inform the person to be searched of his right and it was, therefore, taken as an imperative requirement on the part of the officer undertaking the search to inform the person to be searched of his right that if he so require he could be searched before a Gazetted Officer or a Magistrate. What can be reasonably inferred from this judgment is that the accused is left with the option to be searched before a Gazetted Officer or a Magistrate. The purpose behind the Section appears to be to avoid miscarriage of justice because a Gazetted Officer belonging to the department which is effecting a seizure may have bias in favour of the department whereas no such bias can be attributed to Magistrate. The two judgments cited by Mr. Ghai fully support his case as in these matters the seizure has been effected in the presence of a Gazetted Officer belonging to the department and two different High Courts held that notwithstanding the fact that there was a Gazetted Officer in the raiding party, the offer to be searched before a Magistrate had to be still given in terms of Section 50 of the Act. We are clearly of the opinion that the judgments aforesaid have laid down the correct interpretation of the provisions of Section 50 of the Act."

The ratio of the said decision would apply in the facts of the present case. As per the evidence on the record, the appellant was never informed of his right to be searched before a Gazetted Officer or a Magistrate. Needless to add that evidence is lacking in terms that he was never even told that one of the persons present namely Jagdish Nagar is a Gazetted Officer. This leads to the irresistible conclusion that valuable right of appellant under subsection 1 to Section 50 which is mandatory was lost. It would vitiate the search.

Another factor which goes to the root of present appeal is that as per the persecution evidence, sample was taken of 50 grams of contraband. Learned Public Prosecutor tendered the report of the Forensic Science Laboratory as Exhibit PF. It indicates that the sample was weighing 42 grams. The prosecution had made no attempt to indicate as to how this shortage in the weight occurred. It cannot be described that it was mere mistake of weighing. It was not even the prosecution case that such a mistake had occurred. When the difference is significant in the weight of the sample and what reached the F.S.L., it would be reasonable to infer that the chances of tampering of sample of contraband material cannot be ruled out. Necessarily the benefit of doubt must accrue to the appellant.

For these reasons, while setting aside the judgment and order of sentence passed by the trial Court, the appeal is accepted. The appellant is acquitted of the charge framed. He be released, if not wanted in any other case.