Diwan Chand vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and the sentence imposed on the accused appellant by the learned Additional Sessions Judge (II) Jind in Sessions Case No. 49 of 1988 (Sessions Trial No. 51 of 1989) dated 23.1.1989.

According to the case of the prosecution, on 7.7.1988, the police party was present at the Bus Stand of village Uchana on patrolling duty. At that time, the Sub Inspector Bhim Singh S.H.O. of Police Station, Uchana received the secret information that one person named Diwan Chand son of Harbhagwan, resident of Jind was standing in the crowd of passengers with a suit case containing charas in his hand. On receipt of the said information, the Sub Inspector of Police apprehended the accused and the accused was asked whether he wanted to be searched before a Gazetted Officer or a Lambardar, but the accused desired to be searched there and then by the S.I./S.H.O. himself. Then S.I./S.H.O. searched the accused who was holding a brief case and from the same four packets of charas wrapped in a newspaper were recovered. The total quantity of charas was found to be 14 Kgs. 342 Gms. Out of the same 200 gms were taken as sample and the same was sealed and the remaining charas was kept in the suit case which was sealed by the Sub Inspector. The Sub Inspector sent a ruqa to the Police Station on the basis of which formal F.I.R. was registered. After completion of the investigation, a chargesheet was filed against the accusedappellant.

On the basis of the material placed before him, the learned Magistrate committed the case to the Court of Sessions. After committal, the learned Additional Sessions Judge framed a charge against the accused for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act). The accused pleaded not guilty to the said offence and claimed to be tried.

In order to prove the guilt of the accused, the prosecution examined five witnesses and marked documents. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. and he stated that he was falsely implicated in the case.

On a consideration of the evidence on record, the learned Additional Sessions Judge convicted the accused for the offence under Section 20 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. one lac.

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

PW1 is a member of the Gram Panchayat of the village. He was examined since he was a chance witness for the recovery of the charas from the accused, but PW1 turned hostile and stated that his signature were obtained in the Police Station when he went to the Police Station in connection with some dispute in his village. PW2 was a Constable. According to him on 7.7.1988 he was with Sub Inspector/S.H.O. alongwith other Constable at the Bus Stand of Village Uchana. At that time, a person came and informed the Sub Inspector that one person named Diwan Chand was standing among the passengers and he was in possession of charas. Thereupon, the accused was apprehended and the Sub Inspector asked the accused whether he wanted to be searched in the presence of a Gazetted Officer or some Lambardar, but the accused offered to be searched there and then by the S.I. himself in the presence of the persons already present and the search resulted in recovery of four big packets containing charas in which four small packets of charas were found in each packet. Thus, according to him, there was 16 packets of charas in all and the total weight of the same was found to be 14 Kgs. 342 Gms. Out of the same, charas weighing 200 gms. was taken as a sample and the same was kept in a small Tin which was sealed. He further stated that PW1, a Member Panchayat, was also present and he signed the recovery memo.

PW3 is only a formal witness. PW4 stated that the Sub Inspector Bhim Singh, who was S.H.O. Police Station, Uchana, deposited the case property. PW5 who is the Sub Inspector was the S.H.O. of Police Station, Uchana, who received the secret information and searched the accused and recovered the contraband from the possession of the accused. According to him, he asked the accused whether he wanted to be searched before some gazetted Officer or some Lambardar and the accused desired to be searched by him there and then. Therefore, he conducted the search and recovered 14 Kgs. 342 Gms of charas from the possession of the accused. There is nothing in the evidence of PW2 and PW5 that the secret information was reduced to writing and the same was sent to the higher officials. In Statement under Section 161 Cr.P.C. which is marked as Exhibit PA, PW5, the Sub Inspector, stated that if the accused wanted to be searched in the presence of the Gazetted officer or Lambardar, the accused may call any of them i.e. no offer in the eye of law. It is not for the accused to call the Gazetted Officer or the Lambardar for having been searched in their presence. It is for the Sub Inspector to find out from the accused whether he wanted to be searched in the presence of a Gazetted Officer and if the accused desired to be searched before a Gazetted Officer, it is for him to call the Gazetted Officer and not the accused would himself call the Gazetted Officer. But the record shows that the Sub Inspector asked the accused to arrange the Gazetted Officer if he so desired to be searched in the presence of a Gazetted Officer. This does not amount to compliance with the statutory provisions of the N.D.P.S. Act. Further, even according to the evidence of PW2 and PW5, the secret information which is said to have been received by PW5 was not reduced to writing and the same was not sent to the higher officials. Therefore, there is a clear violation of Subsection (2) of Section 42 of the N.D.P.S. Act which is mandatory in nature as held by the Apex Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 736 : JT 1994(2) SC 108.

After going through the record, I am of the opinion that there is also no compliance with Section 50 of the N.D.P.S. Act. Firstly, there is nothing in writing to show that any offer was made to the accused and that the accused denied that opportunity. Secondly, according to the statement of PW5 recorded under Section 161 Cr.P.C., he (Sub Inspector) asked the accused to call the Gazetted Officer if he so desired to be searched in his presence. In my view, there is no valid offer in the eye of law. It is for the police party either to requisition the presence of a Gazetted officer or take the accused before the Gazetted Officer. Further, the record shows that the Sub Inspector told the accused either to get the Gazetted Officer or Lambardar. The Lambardar is neither a Gazetted Officer nor a Magistrate. Therefore, even assuming for the sake of arguments that some offer was made to the accused to be searched before a Gazetted Officer or Lambardar, it does not amount to strict compliance with Section 50 of the N.D.P.S. Act, especially when the same was not reduced to writing. Further, there is no independent witness to corroborate PW5. In this view of the matter, I am of the opinion that the conviction and sentence imposed on the accusedappellant by the learned Additional Sessions Judge cannot be sustained. In view of the law laid down by the Apex Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 736 : 1994(2) SC 108 and State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : JT 1999(4) SC 595 , the accused is entitled to be acquitted.

The appeal is, accordingly, allowed, the conviction and sentence imposed on the accusedappellant by the (sic) accused is acquitted of the charge framed against him. The bail bonds of the accused shall stand cancelled.