Chander vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Rohtak in sessions Case No. 29 of 1988 (Session Trial No. 4 of 1988) on the accusedappellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the `Act'')

According to the case of the prosecution on 28th August, 1988, the Assistant Sub Inspector of Police Tota Ram alongwith the Head Constable Samunder Singh and two other Constables was present at the Bus Stand Rohtak. At about 6 P.M. the Assistant Sub Inspector of Police received a secret information that the accused was dealing in the sale of opium and was sitting at Booth No. 10 from where the Bus was scheduled to go to village Gochhi and if raided, the opium could be found from his possession. Then the Assistant Sub Inspector of Police and other police officials went to Booth No. 10 where the accused was found sitting on a bench. The Assistant Sub Inspector apprehended him and asked him whether he would like to be searched by him or by some senior Police Officer or before a Magistrate, but the accused offered to be searched by the Assistant Sub Inspector. Then the Assistant Sub Inspector conducted the search and recovered opium wrapped in a wax paper from his dhoti. The opium recovered was found to be 200 gms. The Assistant Sub Inspector took a sample of 10 gms. out of the same and sealed it in a match box and the remaining opium was kept separately and sealed in a cardboard box. Thereafter, he sent a ruqa to the Police Station on the basis of which the case was registered. After completion of the investigation, the chargesheet was filed against the accused.

In order to prove the guilt of the accused, the prosecution examined three witnesses and marked certain documents. After closure of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. wherein the accused stated that he was falsely implicated in the case and no opium was recovered from his possession.

On a consideration of the material on record, the learned Additional Sessions Judge found the accused guilty for offence under Section 18 of the Act and accordingly sentenced him to undergo rigorous imprisonment for a period of 10 years, and pay a fine of Rs. one lac.

Aggrieved by the said conviction and sentence, the accusedappellant preferred this appeal.

The learned Counsel for the petitioner argued that there is a violation of the provisions of Subsection (2) of Section 42 and also the provisions of Section 50 of the Narcotic Drugs & Psychotropic Substances Act and, therefore, the conviction and sentence imposed on the accusedappellant are liable to be set aside.

It is, therefore, to be seen whether the prosecution established that the opium was legally recovered from the possession of the accused.

PW1 is the Head Constable. According to him, the Assistant Sub Inspector Tota Ram received a secret information that one Chander of village Gochhi was dealing with opium and he was sitting at Booth No. 10 at the Bus Stand and the opium could be found from his possession. Thereupon, himself and the Assistant Sub Inspector and other Constables went to Booth No. 10 and apprehended the accused. Further, according to him before making the personal search, the Assistant Sub Inspector offered him to be searched in the presence of a senior police officer or a Magistrate, but the accused agreed to be searched by the Assistant Sub Inspector. Thereafter, the Assistant Sub Inspector conducted the search on the person of the accused which resulted in recovery of 200 Gms. opium from the possession of the accused.

PW2 is the Assistant Sub Inspector. He also deposed to the same effect. The evidence of PW3 is not material since he only issued the F.I.R. on the basis of the report received from PW2. Except the evidence of PW1 and PW2, the prosecution has not examined any independent witness to show that the opium was recovered from the person of the accused. Further, admittedly, the secret information has not been reduced to writing. Under Section 42(2) of the Act whenever a secret information is received by the Police, it has to be reduced to writing and copy of the same has to be sent to the higher police officials. But there is no evidence to this effect that the secret information received by PW2 has been reduced to writing and sent to the higher officials. In fact, PW2 in his evidence clearly admitted that he did not send any special report. It is also clear from the reading of his evidence that he did not reduce the secret information in writing. Thus, there is a clear violation of Subsection (2) of Section 42 of the Act.

Apart from that, there is also no acceptable evidence that an offer was made to the accusedappellant whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. Except the oral testimony of PW1 and PW2, there is nothing on record to show that any such offer was made to the accused before conducting the search. As already observed, no independent witness has been examined by the prosecution to prove this fact. There is also nothing in writing that before conducting the search an offer was made to the accused and that the accused declined the offer and agreed to be searched by the Assistant Sub Inspector. Thus, on the basis of the material on record, I am of the view that it is not possible to believe the oral testimony of PW1 and PW2 in the absence of any independent witness. It is not as though the police could not find any independent witness. The search admittedly has been conducted at the Bus Stand. There would have been several persons available at the Bus Stand, but the prosecution failed to examine any of the persons. I am, therefore, of the opinion that it is unsafe to place reliance on the testimony of Head Constable and Assistant Sub Inspector of Police since the prosecution failed to prove that any offer had been made to the accused whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. It has been held by the Supreme Court in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : JT 1999(4) SC 595 that many recovery of the contraband without following the procedure envisaged under Section 50 of the Act is illegal and no conviction can be based on such illegal recovery. It has also been held by the Apex Court in Kalayath Nassar v. State of Kerala, 1999 S.L.T. 63 that the failure of the Searching Officer to communicate the accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate vitiates the search. When there is a violation of the provisions of Subsection (2) of Section 42 and Section 50 of the Act, the accused is entitled to be acquitted of the charge.

In view of the foregoing discussion, the appeal is allowed, the conviction and sentence imposed on the accusedappellant by the learned Additional Sessions Judge, Rohtak, are hereby set aside and the accused is acquitted of the charge framed against him. His bail bonds shall stand cancelled.