Chet Ram vs State of Haryana

Dr. Sarojnei, Saksena, J.

The appellantaccused was convicted by Additional Sessions Judge, Karnal, for an offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter in short, the Act) and was sentenced to undergo rigorous imprisonment for 10 years with fine of Rs. One lac, and in default of payment of fine to further undergo rigorous imprisonment for three years, by judgment dated November 26, 1994.

Brief factual matrix of the case is that on October 19, 1993, Dilbagh Rai A.S.I., C.I.A. Staff Karnal PW3 along with Bhim Singh HC and other Police officials was present on ITI Chowk Karnal in connection with general checking. The accused happened to pass by that route. On seeing the police party standing, he tried to slip away therefrom, giving rise to suspicion, on which he was apprehended by Dilbagh Rai A.S.I. PW3. Dilbagh Rai PW3 interrogated him, expressed his suspicion that he is carrying charas and, therefore, his personal search is to be taken. He was asked whether he intends to give his personal search to some gazetted officer. Thus, on the option exercised by the accused, his personal search was taken in the presence of a gazetted officer Mr. Chanda Singh, D.S.P. PW2. The accused was carrying a bag Exhibit P2 which contained 1Kg of Charas wrapped in a glazed paper. Out of this charas, 50 grams were taken out as a sample. The sample and the remainder were duly sealed by ASI Dilbagh Rai PW3. Usual investigation was conducted on the spot, contraband as seized, ruqa was sent to the police station and FIR was recorded. The accused was arrested and was brought to the police station along with the seized contraband. Seized contraband and the sample packet were deposited in the police station Malkhana. Thereafter sample was sent to the Forensic Science Laboratory, Madhuban. As per the report of this laboratory Exhibit PD, sample was found to be that of charas. Hence, the accused was charged under section 20 of the Act.

The prosecution examined four witnesses, tendered in evidence the report of the Laboratory as well as the affidavits of Ram Karan HC and Jagtar Singh Constable.

The accused denied the guilt and his plea is that of false implication. He adduced documentary evidence in defence.

The trial Court on a minute scanning of the prosecution evidence found that the prosecution has proved the guilt against the accused beyond any shadow of doubt. Hence he was convicted and sentenced, as stated at the outset.

The appellant''s learned counsel raised only one contention during arguments. He drew my attention to the FIR as well as to the statement of ASI Dilbagh Rai PW3, wherein it is specifically mentioned/stated that Dilbagh Rai ASI was discharging official duty of general checking at the relevant time on the spot where the accused was arrested. He saw the accused coming from the side of the Kunjpura road. On noticing the police party standing, as he retraced his steps, Dilbagh Rai ASI PW3 stopped him on suspicion. He asked for his whereabouts and told him that he suspects that the bag which the accused is carrying contains charas. Then he gave him an opinion that his personal search can be taken in the presence of some gazetted officer. The accused replied that the gazetted officer may be called. Thereupon ASI Dilbagh Rai PW3 called Shri Chanda Singh, D.S.P. PW2 from police office Karnal and before him the bag, being carried by the accused, was searched. It contained 1 Kg of charas.

The appellant''s learned counsel, relying on Mohinder Kumar v. State of Panaji, Goa, 1995(2) Recent CR 599 contended that as soon as ASI Dilbagh Rai PW3 suspected that the accused is carrying charas and he is to be searched, thereafter he was required to follow the mandatory provisions of section 50 of the Act. It is evident from the statement of ASI Dilbagh Rai PW3 that only partial option was given to him under section 50. This option was not given to him that his search can be taken in the presence of a Magistrate as well. As this mandatory provision is not followed, this has vitiated the trial and on this basis alone the accused is entitled to acquittal.

Mrs. Madan, learned AAG, Haryana, contended that as it was a chance recovery, the provisions of section 50 of the Act cannot be invoked. She has relied on State of Punjab v. Balbir Singh, 1994(3) SCC 299. She further contended that the personal search of the accused was taken in the presence of Shri Chanda Singh D.S.P., a gazetted police officer. There is no reason to disbelieve the statements of these police officials. It cannot be doubted that one Kg of charas was recovered from the possession of the accused. Hence the accused was rightly convicted by the trial Court.

In this case, the only point for consideration is whether the provisions of section 50 of the Act were attracted and whether they were complied with strictly. From the statement of ASI Dilbagh Rai PW3, it is obvious that when he found that the accused immediately on seeing the police party tried to slip away from the spot, he suspected that he is carrying charas and, therefore, is avoiding to face the police party. In Mohinder Kumar''s case (supra) the Apex Court has held that "in the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act." In this case also, ASI Dilbagh Rai PW3 has categorically stated that when the accused retraced his steps, he suspected that he is having charas. He interrogated him and told him that he suspects that he is carrying some contraband. Therefore, he intends to take his personal search, and if the accused so opts some gazetted officer may be called for this purpose. As the accused opted for the presence of a gazetted officer at the time of search, Shri Chanda Singh D.S.P. was called by ASI Dilbagh Rai. Hence it is obvious that ASI Dilbagh Rai had reason to believe that the accused was carrying some contraband, whereupon he apprehended him, told him the purpose, expressed his suspicion and gave him that partial option. Since only partial option under Section 50 of the Act was given to the accused for taking his personal search, it is not a compliance of the mandatory provision of Section 50. Accordingly, I find that since only partial option was given to the accused, this has vitiated the trial and on this count alone the accused is entitled to acquittal.

Consequently, this criminal appeal is allowed. The conviction and sentence of the accusedappellant are set aside. Fine, if deposited, be refunded to him. If he is in custody, he be released forthwith if not required in any other case.