Dalbir Singh vs State of Punjab

M.L. Singhal, J.

This is a Criminal Appeal No. 569SB of 1996 against the judgment/order passed by the Additional Sessions Judge, Amritsar whereby he convicted Dalbir Singh (appellant herein) under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to under go rigorous imprisonment for 10 years and to pay fine of Rs. one lac or in default to undergo further rigorous imprisonment for one year.

The facts of the prosecution case briefly stated are:

On 19.7.1989 SI Mohinder Singh, SHO Police Station Mehta was holding nakabandi at bus stop of village Khazala. ASI Malhar Singh and other police officials were also with him. They were there in connection with patrolling and checking of the bad characters. It was about 11.00 a.m. In the meantime Dalbir Singh accused was sighted coming towards bus stop of village Khazala. On seeing the police party he at once receded backwards. SI Mohinder Singh SHO Police Station Mehta became suspicious about this conduct of the accused. He accordingly apprehended him and enquired him his name and address. He was holding a `jhola'' in his right hand. SI Mohinder Singh wanted to effect search of that jhola as he suspected that jhola was containing some contraband. He told the accused that he would be searching that jhola and he could search that jhola by himself or if he wanted, he could take him to some gazetted police officer who could effect search of that jhola. Accused declined to avail this offer saying that he could go ahead and subject him to the search of that jhola by himself without his being taken to any gazetted officer. SI Mohinder Singh then embarked upon search of that jhola. Search of that jhola yielded the recovery of 4 kgs and 800 grams opium wrapped in glazed paper. Out of that recovered opium 20 grams was separated as sample. Sample opium was put in a tin box. Remaining opium was wrapped in that very glazed paper and put in tin pipa. Tin box and tin pipa were made into parcels. Those were sealed by SI Mohinder Singh with his own seal bearing impression `MS''. The seal after use was handed over to ASI Malhar Singh. Both sealed parcels containing opium were taken into possession vide memo Ex.PA attested by HC Anokh Singh and ASI Malhar Singh. Ruqa Ex.PB was sent to Police Station, Mehta for the registration of the case against the accused, on the basis of which formal FIR Ex.PB/1 was recorded at Police Station, Mehta. Visual site plan Ex.PC was prepared at the spot with correct marginal notes. SI Mohinder Singh deposited both the sealed parcels containing opium with seals intact at Police Station Mehta with MHC Charanjit Singh, the same day when he reached back there. Sample was sent to the Chemical Examiner for chemical examination who vide report Ex.PY found the sample containing opium, containing morphine and meconic acid. After investigation accused was challaned under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act).

The case was committed to the Court of Sessions by Judicial Magistrate 1st Class, Amritsar vide order dated 12.12.1992.

The Additional Sessions Judge, Amritsar charged the accused under Section 18 of the Act vide order dated 24.12.1992. Accused pleaded not guilty to the charge and claimed trial.

With a view to bring home to the accused the charge levelled against him, the prosecution examined Swaran Singh DSP PW.1, H.C. Sukhdev Singh PW.2, ASI Malhar Singh PW.3 and Mohinder Singh DSP PW.4, besides tendering into evidence report of the Chemical Examiner Ex.PY and affidavit of MHC Charanjit Singh.

Accused when examined under Section 313 of the Code of Criminal Procedure denied the imputations appearing in prosecution evidence against him and stated that it was a false case.

At the conclusion of the trial, learned Additional Sessions Judge held the charge proved vide order dated 11.7.1996. He convicted the accused and sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. one lac or in default to further undergo rigorous imprisonment for one year.

Aggrieved from his conviction and sentence recorded by the Additional Sessions Judge, Amritsar he has come up in this criminal appeal No. 569SB of 1996 in this Court through Shri D.S. Pheruman, Advocate. He has also sent an appeal namely Criminal Appeal No. 579SB of 1996 through jail.

By means of this judgment Criminal Appeal No. 569SB of 1996 and Criminal Appeal No. 579SB of 1996 shall be disposed of.

It has been submitted by the learned counsel for the appellant that SI Mohinder Singh SHO Police Station, Mehta has acted in flagrant violation of the provisions of Section 50 of the Act. Section 50 of the Act reads as follows :

Section 50:

"Conditions under which search of persons shall be conducted (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires take such person without unnecessary delay to that nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female."

While introducing Section 50 of the Act the anxiety of the Legislature was to provide some assurance to the accused against false implication. In the Act, the Legislature has provided very harsh and stringent punishment for possession of narcotic drug or psychotropic substance, as for instance, the Legislature has provided 10 years'' imprisonment and fine of Rs. one lac in the minimum in Sections 15, 18, 20, 21 and 22 of the Act. So that there was no scope for false implication or false implication was considerably obviated, the Legislature introduced certain safeguards in the Act. In the Act Section 50 has been enacted to act as a safeguard against vexatious trial and unfair dealing and to protect and safeguard an innocent person. It also provides a weapon to the law enforcement agencies against usual allegation that drug had been planted by these officers. While interpreting this section in State of Punjab v. Balbir Singh, 1994(1) Recent C.R. 737 , their Lordships of the Hon''ble Supreme Court observed as follows :

"It must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right".

The Hon''ble Supreme Court approved the said view in Saiyad Mohd. Saiyad Umar Saiyed v. State of Gujarat, 1995(2) Recent C.R. 388 . Their Lordships of the Hon''ble Supreme Court while holding that the protection under Section 50 of the Act to the accused is sacrosanct and cannot be taken away made the following observations :

"Finding a person to be in possession of articles which are illicit under the provisions of NDPS Act has, as we have said, the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishment which can extend to 20 years rigorous imprisonment and a fine of Rupees two lakhs or more. It is necessary, therefore, that courts dealing with offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the concerned officer that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of his right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug peddlers do not go scot free due to noncompliance thereof. Such instructions would be of great value in the effort to curb drug trafficking. At the same time, those accused of possessing drugs should, however heinous their offence may appear to be, have the safeguard that the law prescribes".

It was held by their Lordships that if the ingredients of Section 50 are not complied with, the conclusion that would be capable of being drawn is that prosecution could not bring home to the accused the recovery of contraband from him beyond all reasonable doubt. Section 50 enjoins upon the officer intending to search the person to be searched that if he wanted he could be taken to a Gazetted Officer or some Magistrate could be called in to witness the search. If this mandatory requirement is not complied with, the violation thereof is fatal to the prosecution.

In State of Punjab v. Angrej Singh, 1996(3) Recent C.R. 125 , a Division Bench of this Court held that where the accused is not informed of his right to be searched before a Gazetted Officer or a Magistrate, there is violation of mandatory provisions of Section 50 and the accused is entitled to be acquitted.

In Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994(3) Recent C.R. 595 , their Lordships of the Hon''ble Supreme Court held that Section 50 of the Act confers right on the person to be searched in the presence of a Gazetted Officer, if he had required and the failure to provide that option would vitiate his conviction.

Faced with this position, learned Deputy Advocate General, Punjab submitted that in this case there has been compliance of the provisions of Section 50 of the Act inasmuch as accused was told that if he wanted he could be taken to a Gazetted Officer for search and that the provisions of Section 50 provided that he should be either Gazetted Officer or Magistrate and it was upto the officer apprehending the accused to choose whether he should be a Gazetted Officer or Magistrate. Suffice it to say, it was a partial offer. The Investigating Officer did not tell the accused at all that if he wanted he could be taken to a Magistrate also for search. Strictly speaking it was not even a partial offer. The Investigating Officer circumscribed that option to a Gazetted Officer of the police department alone. If the Investigating Officer had told the accused that he could be taken to a Gazetted Officer of another department for search, it could have been contended by the Deputy Advocate General, Punjab that there had been some compliance of the provisions of Section 50. Section 50 has laid down in quite candid terms that the person to be searched should be told by the officer who is to search him that he has the right to be taken to a Gazetted Officer or a Magistrate for search. It will be for the officer who is to conduct his search whether to take him to a Gazetted Officer or a Magistrate depending upon his availability with ease.

The learned counsel for the appellant on the other hand has submitted that we cannot question the wisdom of Legislature when the Legislature intends a particular thing to be done in that manner, that thing has to be done in that manner and in no other manner whatever. When Section 50 intends that the accused should be told that he has a right to be taken to a Gazetted Officer or a Magistrate for search, the offer should be complete and there should be no impingement so far as this offer is concerned. In support of this submission, he has drawn my attention to Michael Gorden Kingsbury v. Narcotics Control Bureau, 1995(1) Recent R.C. 480 , where it was observed as follows :

"A bare reading of this section makes it abundantly clear that the officer desirous of making the search has to inform the concerned person that if he so desires, he could be taken to the nearest Gazetted Officer of any of the departments, mentioned in Section 42 or to any nearest Magistrate, and if such a requisition is made, the person concerned has to be taken before the Gazetted Officer or the Magistrate. No such offer was, however, given to the appellants. Learned counsel for the appellants have submitted that it was a mandatory provision and its noncompliance vitiates the trial and on this ground alone, the appeals filed by the appellants have to be accepted and thus, it has been submitted that the conviction and sentence of the appellants may be set aside on this ground alone. Learned counsel for the respondent has frankly admitted that there has not been any compliance of Section 50 of the Act. He has, however, submitted that this provision would apply only with regard to the taking of the personal search of the accused and that there was no such requirement as regards the search of the baggage and articles with the accused persons. He has, thus, submitted that the conviction of the appellants can be maintained with regard to the recovery effected from the suitcase on the basis of its search".

The same view was taken in Mukesh v. State (Delhi Administration), 1995(1) Recent C.R. 573 and Parshotam Dass v. State of Punjab, 1996(3) All India Cr. Law Reporter 732.

It has been submitted by learned Deputy Advocate General, Punjab that in this case provisions of Section 50 do not come in when the apprehension of the accused was quite sudden and unexpected and there was no prior information against the accused.

It is quite plain that in this case there has been virtually no compliance so far as the provisions of Section 50 are concerned. It would bear repetition that the provisions of Section 50 are mandatory.

In State of Punjab v. Angrej Singh (supra) it was observed by a Division Bench of this Court that where police party spotted the accused and apprehend him on suspicion and searched him and found one kg. of opium in his possession, it means that police had become suspicious that the accused had in possession some offending article and therefore the provisions of Section 50 would be attracted, relying upon the decisions in State of Punjab v. Balbir Singh, 1994(1) Recent C.R. 736 and

Mohinder Kumar v. State, Panaji, Goa, 1995(2) Recent C.R. 599. 23. In this case there is only ipse dixit of SI Mohinder Singh and that of ASI Malhar Singh that the said offer was given to the accused. No statement of the accused was recorded showing that this offer had really been given to him. 24. In Sukhwinder Singh @ Dulla v. State of Punjab, 1997(3) Recent C.R. 87 , it was held that where only police officials have stated that the accused had been given such offer, but he declined to avail that offer and his statement to this effect was not recorded, police officials should not be believed that offer had really been given to the accused and he declined to avail that offer.

Nonrecording the statement of the accused to that effect could have been ignored if the fact that such offer had been made to the accused and declined by him had been supported by some independent witness. In this case recovery was not witnessed by any independent witness. It is true that it is not always that a police officer should be flanked by an independent witness or he should make it a point to see that whatever he does is witnessed by an independent witness. In this case, however, the justice, equity and fair play demanded that either SI Mohinder Singh should have taken the accused to a Gazetted Officer or a Magistrate or he should have got the recovery witnessed by some independent witness.

The prosecution case hinges upon the uncorroborated testimony of SI Mohinder Singh and ASI Malhar Singh PWs. Both of them are police officials. It would not be just and proper to sentence the accused to 10 years imprisonment and fine of Rs. one lac on their uncorroborated testimony. It is cardinal principle of criminal jurisprudence that "graver the offence, stricter the proof".

For the reasons given above, I am of the opinion that Dalbir Singh (appellant) was unjustifiably convicted and sentenced by learned Additional Sessions Judge, Amritsar. So this criminal appeal succeeds and is accepted and the accused is acquitted of the charge levelled against him. Fine, if paid, shall be refunded to him. With this judgment, Crl. Appeal No. 579SB of 1996 also succeeds and is accepted.