Dalbir Singh vs State of Punjab

K.S. Kumaran, J.

AppellantDalbir Singh, faced charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act) before the Additional Sessions Judge, Ludhiana. in Sessions Case No. 17 of 21.3.1994. According to the prosecution on 4.9.1993 Sub Inspector Bhupinder Singh of Police Station City Khanna, along with the other police officials as also an independent witness Nirbhai Singh was present at, ''T'' point near the cremation ground, Khanna, on routine patrolling. At about 445 p.m. accusedappellantDalbir Singh came on a moped and tried to slip away on seeing the police party. He was apprehended on suspicion and was informed that if he desired, he can be searched before a big officer. But since the accused/appellant reposed confidence in the police party he offered himself to be searched by the said Sub Inspector. On a personal search of the accused/appellant 750 grams of opium wrapped up in a glazed paper and tied to the waist of the accused with a cloth was seized, 20 grams of the same was taken as sample. After receipt of the chemical examiner''s report the chargesheet was filed.

During the trial, before the learned Additional Sessions Judge Sub InspectorBhupinder Singh was examined as PW2 while Bant Singh (Head Constable at the time of the occurence) was examined as PW1. The necessary link evidence was also produced in the form of affidavits of PW3 and PW4. PW5 was the Inspector of Police, who was the Station House Officer of the concerned station, before whom the case property and the accused were produced. The report of the Chemical Examiner was also produced as evidence. The accused/appellant denied the prosecution case and alleged that he was taken from his house on 1.9.1993 in the presence of Nirbhai Singh and Harcharan Singh, illegally detained in the Police Station for 3/4 days and then the opium was planted on him. He examined Nirhbai Singh as DW1, who supported the defence version.

The learned Sessions Judge, after taking into consideration the materials placed before him came to the conclusion that the guilt of the accused/appellant has been proved, convicted him under Section 18 of the N.D.P.S. Act and sentenced him to undergo Rigorous Imprisonment for 10 years, to pay a fine of Rs. one lakh and in default to further undergo Rigorous Imprisonment for six months, by his judgment dated 26.2.1997.

The accused has, therefore, preferred this appeal.

The main contention of the accused/appellant is that the provisions of Section 50 of the N.D.P.S. Act have not been complied with in this case since no offer was made to the accused/appellant that if he so desired he will be searched before a Magistrate or a Gazetted Officer, and on that ground alone he (the accused/appellant) is entitled to acquittal.

I agree with this contention of the learned counsel for the appellant. It is seen from the Judgment of the trial Court that the offer which was made to the accused/appellant was that if he desired he would be searched before some big officer. The trial Court has also considered this point and has observed that there was no valid offer to the accused since the consent memo (Ex.PA) of the accused also showed that he was given offer to be searched before a big police officer. He has also observed that even in the Ruka, there is only a similar statement but PW1 stated in his evidence that the offer to search before a Magistrate or a Senior Police Officer was given. But the learned trial Court did not see it necessary to comply with the provisions of Section 50 of the N.D.P.S. Act inasmuch as the recovery in this case was a chance recovery. This view of the learned trial Court is not correct. Because, even according to PW 1 an offer was made to the accused/appellant that if he wanted, he would be searched before a Magistrate or a Senior Police Officer. It means that the police party suspected the accused/appellant to be in possession of a contraband under this Act. From that stage onwards the police party is bound to follow the provisions of the N.D.P.S. Act, even though the police party had no prior secret information with regard to the accused/appellant as being in possession of any contraband under this Act. Therefore, when the police party had entertained such doubt it should have complied with Section 50 of the N.D.P.S. Act in substance and effect. As pointed out already the offer made to the accused/appellant was not complete inasmuch as there was no offer to the accused/appellant that if he so desired he will be searched in the presence of Magistrate or a Gazetted Officer. There was no such offer made to the accused/appellant at the time of the occurrence. But at the time of trial, the prosecution tried to improve when PW1 stated that such an offer was made which is totally unacceptable. Therefore, in these circumstances, I am, of the view that the provisions of Section 50 of the N.D.P.S. Act should have been complied with in this case and the noncompliance of the said provision is fatal to the case of the prosecution. On this ground alone the accused/appellant is entitled to be acquitted.

Accordingly, this appeal is allowed setting aside the conviction of and sentence passed against the accused/appellant. The accused/appellant is accordingly acquitted.