Bhagwan Dass vs State of Haryana

V. S. Aggarwal. J.

This is an appeal filed by Bhagwan Dass son of Devi Dass (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Kurukshetra dated 23.2.1994. By virtue of the impugned judgment the learned trial court held the appellant guilty of the offence punishable under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as ''the Act'') and subsequently sentenced the appellant to undergo rigorous imprisonment for ten 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 one year.

The relevant facts are that on 6.11.1992 SI Bhoop Singh was posted in C.I.A. Staff, Kurukshetra. Accompanied by ASI Ram Kala and other police officials, he was present at Brahm Srover. They were patrolling the area. SI Bhoop Singh received a secret information about the accused loitering with a bag containing opium. SI Bhoop Singh organised a raiding party. The picket was held near the statue of Gulzari Lal Nanda at Braham Srover. After some time the appellant with a bag came from the side of Kali Kamli ground. He was apprehended on suspicion.

The appellant disclosed his identity. Appellant was told that if he likes his person can be searched before a Gazetted Officer. He opted that he may be searched before the Gazetted Officer. A memo in this regard was prepared. Mohammad Akil, Additional Superintendent of Police reached there. The search of the appellant was effected in his presence. The bag contained opium wrapped in a polythene paper. Contents were weighed and found to be 2 Kilogram. 100 grams was taken as the sample.

The sample and the rest of the opium were converted into two separate parcels, sealed and taken into possession vide a recovery memo. The appellant was arrested.

The Investigating Officer Bhoop Singh along with the case property and the appellant came to the police station. The articles were handed over to the OfficerinCharge of the police station, Thanesar. The same were deposited in the Malkhana. Subsequently, the sample was sent to the Forensic Science Laboratory, Haryana. It was found that it was opium. Thereafter report under Section 173 Cr.P.C. was submitted.

On 11.6.1992 the learned Additional Sessions Judge framed a charge against the appellant with respect to the offence punishable under Section 17 of the Act to which the appellant pleaded not guilty and claimed a trial.

The precise defence of the appellant was that no recovery as such was effected. He has falsely been implicated. The appellant produced Gurnam Singh DW1 who deposed that he was earlier serving with one Dharam Pal. There were some payments to be made by the appellant to Dharam Pal. Gurnam Singh refused to be surety for repayment and it was that reason that Dharam Pal got a false case registered and involved the appellant.

The learned trial court on appraisal of evidence held that statutory provisions of the Act have been complied with. The learned trial court further held that it has been established that the recovery was effected from the person of the appellant. With these findings, the impugned judgment and the order of sentence were passed.

The Act as such has been enacted to curb the menace of increase in sale, purchase or transport of opium under the Narcotic Drugs & Psychotropic Substances Act, 1985. The stringent punishment in the form of minimum of ten years (in certain cases) have been provided. While the Legislature provided stringent punishment, at the same time to take care that no injustice is done and accepting the rule of fair play, the mandatory provisions have been enacted. The same are with the object that no prejudice is caused to a person from whom such recovery is alleged to have been made.

In the first instance it has been argued that provisions of Section 50 of the Act have not been complied with. It requires no repetition that sub section (1) of Section 50 of the Act gives a right to the person, that search be effected by the nearest Gazetted Officer or the Magistrate. This right as held by the Supreme Court in the case of State of Punjab v. Balbir Singh, JT 1994(2) SC 108 is a valuable right. The Supreme Court further concluded that provisions are mandatory in nature.

The prosecution seeks to assert that the said provisions were complied with. The appellant was told that if he likes his person can be searched before a gazetted officer and in fact a gazetted officer was present when the search was effected. The memo prepared to show that appellant wanted his search to be conducted before a gazetted officer is Ex.PF.

Ex.PF is purported to have been thumb marked by the appellant and recites that appellant indicated that his person may be searched before a gazetted officer. The same is assailed on the ground that it does not fulfil the requirement of Section 50(1) of the Act because no offer is asserted to have been given to the appellant as to if he can get his person searched before a gazetted officer or a Magistrate.

Reference to the evidence on this subject would be advantageous. SI Ram Kala PW6 stated that nakabandi was held and the accused was detained. In his own words his ExaminationinChief reads :

"After some time the accused present in court came with a bag on his shoulder. On suspicion he was apprehended and enquired about the contents of bag. On enquiry the accused told that he had opium in the said bag. He was asked whether he wanted his search to be conducted by a Gazetted Officer. He replied in affirmative. Memo to this effect was prepared which is Ex.PF."

This clearly indicates that in terms of the statement made by SI Ram Kala when accused was asked that he is suspected to be in possession of the opium, he had given an answer in the affirmative. If this was the question answered, there was no occasion to ask with respect to the search to be effected before a gazetted officer. The version otherwise also is totally contrary to the prosecution case. The other witness so produced is SI Bhoop Singh PW8. He stated that appellant was asked whether his person can be searched by him or by a gazetted officer, to which the answer came in affirmative.

What is lacking and totally missing in this respect is that there was no evidence as to why the person of the appellant was to be searched. The offer otherwise also was partial. In the absence of the appellant being told of the suspicion against him particularly when secret information had been received, he could not exercise the option in terms of subsection (1) of Section 50 of the Act. Thus, it must follow that there was noncompliance of the provisions of Section 50(1) of the Act.

Another safeguard provided is the stringent provisions of Section 55 of the Act. It reads :

"55. Police to take charge of articles seized and delivered. An OfficerinCharge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the OfficerinCharge of the police station."

Under the said provisions a duty has been cast on the OfficerinCharge of the police station to take charge of and keep in his safe custody the articles so recovered. He may allow the sample to be taken. He has to affix his seal on the said articles. This has been enacted to ensure that there is no tampering with the said articles. A senior officer of the police station has been authorised to seal the property so recovered.

Though once again an attempt was made to show that the compliance of the said provisions was enacted but on close scrutiny it falls flat. Sohan Singh PW1 is the OfficerinCharge of the police station. He makes no statement that he had affixed his seal on the recovered opium or had taken the articles into his custody. There is no further evidence that even the Malkhana Moharrir noticed that the case property was deposited by the OfficerinCharge of the police station in his affidavit. On the contrary he recites that it was the Investigating Officer who deposited the property. SI Bhoop Singh makes a valiant attempt in this regard. He states that when he came back to the police station, the case property and the sample were handed over to the OfficerinCharge of the police station. This statement runs counter to the statement of the OfficerinCharge of the police station and the Malkhana Moharrir. There is no other evidence to indicate that there was compliance of the provisions of Section 55 of the Act. In this process the property did not go to the safe custody with the seal of the OfficerinCharge of the police station.

For noncompliance of the mandatory statutory provisions prejudice is caused to the appellant and he is entitled to the benefit of doubt.

For these reasons, the judgment and the order of sentence passed by the trial court are set aside. The appellant is acquitted of the charge framed against him. He be released if not required in any other case.