Guljar Singh vs State of Haryana

R.L. Anand, J. (Oral)

By this judgment I dispose of two Criminal appeals Nos. 547SB of 1994 titled Guljar Singh and others v. State of Haryana and 32SB of 1995 titled Raghvir Singh and another v. State of Haryana and others as both the appeals have arisen from the judgment dated 6th October, 1994 and order dated 8th October, 1994 passed by the Court of Additional Sessions Judge, Karnal, who convicted and sentenced the appellants under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act'') and sentenced each one of them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/ and in default of payment of fine each one of them was ordered to undergo further rigorous imprisonment for a period of two years. Vide the aforesaid order the vehicle in question has been confiscated to the State.

Brief facts of the case are that on 14th August, 1993 a secret information was received by Inspector Bhim Singh against the appellants when the said Inspector along with members of the Police Party was present in connection with the patrol duty at Nagla Magha Chowk. It was reported to the Investigating Officer that the appellants would bring poppy husk in the Maruti Van bearing registration No. HE057476 from the other side of river Yamuna via the bridge on Yamuna under construction and that the appellants would carry the poppy husk towards Dacher and Gonder and if Nakabandi is held, near village Manglora, the appellants along with the poppy husk can be apprehended/seized. Believing that this secret information is correct, the Investigating Officer along with other subordinate Police officials reached village Manglora and joined Shri Sher Singh Sarpanch of the village. Thereafter the Police Party held Nakabandi near village Manglora. At 1.45 a.m. on the night intervening 14th/15th August, 1993, the appellants came in the vehicle. They were stopped in the torch light. In the Maruti Van all the four appellants were sitting. Guljar Singh appellant was driving the vehicle. The vehicle was searched and four bags of poppy husk were found lying in the dicky. The Thanedar told the occupants of the vehicle that he had suspected that poppy husk was contained in the bags and whether they would like to give search in his presence of in the presence of a Gazetted Officer. Upon this Shri Guljar Singh and other appellants told the Investigating Officer that they would like to be searched in the presence of a Gazetted Officer. Thereafter in order to secure the presence of the Gazetted Officer, a wireless message was flashed by the Investigating Officer and Shri Raj Kumar, DSP (Headquarters), Karnal, reached at the spot and in his presence the search of each of the gunny bags was taken. Poppy husk was found therein. Each bag contained 40 kgs. of poppy husk. A sample of 250 grams was separated from each gunny bag and the samples and the remainder were sealed with the seal of Shri Bhim Singh, Investigating Officer, bearing inscription `BS''. The seal after use was handed over to Shri Sher Singh Sarpanch. In this manner the sample of poppy husk weighing 250 grams was taken from each of the bags. The case property was taken into possession vide recovery memo. Ex. PC. The accused could not produce any licence or permit for the possession of the poppy husk. Resultantly, ruqa Ex. PD was sent to Police Station Sadar, Karnal on the basis of which formal FIR (Ex.PD/1) was recorded. The Investigating Officer prepared the site plan (Ex. PE), recorded the statements of the witnesses under Section 161, Cr.P.C., and arrested all the four accused. The samples of the poppy husk were sent to the Forensic Science Laboratory, Madhuban and the report of the Chemical Examiner was obtained, and the Chemical Examiner determined the contents of the samples as Chura of poppy husk. On conclusion of the investigation all the four appellants, i.e., Guljar Singh, Gurdeep Singh, Chanan Singh and Manjit Singh, were challaned in the Court of the Illaqa Magistrate, i.e., Additional Chief Judicial Magistrate, Karnal, who vide commitment order dated 19th November, 1993 committed the appellants in the Court of Session in order to face trial. Vide order dated 24th November, 1993 passed by the Court of Additional Sessions Judge, Karnal, the aforesaid four appellants were chargesheeted under Section 15 of the Act on the allegation that on 14th August, 1993 at about 5 a.m. in the area of village Manglora, they had kept in their possession 160 kilograms of poppy husk contained in four gunny bags in Maruti Van No. HR057476 without any licence or permit, and thereby they had allegedly committed the offence under Section 15 of the Act. The charge was read over and explained to the said appellants, to which they pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined Head Constable Dharam Pal (PW1), who gave his statement by way of affidavit (Ex.PA), and Constable Ram Bhajan (PW2), who gave his statement by way of affidavit (Ex.PB). The other witnesses examined by the prosecution are Shamsher Singh (PW3), Shri Raj Kumar, DSP (PW4), and Inspector Bhim Singh (PW5), who is the Investigating Officer in the present case.

Statements of the accused were recorded under Section 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to them. The accused denied all the incriminating circumstances and pleaded innocence. Guljar Singh appellant put up a counter story to the following effect :

"The witnesses are deposing falsely because they are either the police officials or under the influence of liquor. The police is inimical to me and it was at the instance of Kashmir Singh who is a known smuggler and is hand in glove with the police, that I have been implicated in this false case. Kashmir Singh is also inimical to me. I was arrested from by house on 12.8.1992."

In defence the accused examined Shri Bhup Singh Ahalmad as DW1, Shri Gurbachan Singh (DW2) and Head Constable Birbal Singh (DW3). Two Court witnesses, i.e., Shri Sukhinder Singh, Head Constable (CW1), and Shri Dayal Singh, Registration Clerk in the SDM''s Office, Karnal (CW2), were also examined.

Learned Additional Sessions Judge believed the prosecution story and convicted the appellants under Section 15 of the Act and sentenced each one of them in the manner stated above. The vehicle in question was also confiscated to the State.

Aggrieved by the aforesaid judgment and order passed by the learned Additional Sessions Judge, present two appeals have been filed, which I am disposing of with the assistance rendered by Shri Narottam Kaushal, Advocate, appearing for the appellants in Crl. Appeal No. 547SB of 1994 and Shri K.S. Dhaliwal, Advocate, appearing for the appellants in Criminal Appeal No. 32SB of 1995; and Shri Shailender Singh, learned Deputy Advocate General, Haryana, appearing on behalf of the State, and with their assistance I have gone through the record of the case.

First of all I would take up the appeal filed by the clients of Shri Narottam Kaushal, Advocate, because in the event of the success of this appeal, the appeal filed by the clients of Shri K.S. Dhaliwal, Advocate, gets life.

It was submitted by the learned counsel for the appellants that the mandatory provisions of Section 50 of the Act have not been complied with as the alleged offer was a partial one. It was further pointed out by the learned counsel Shri Narottam Kaushal that the Investigating Officer did not record the statements of all the appellants to the effect that they had every reposed confidence in Shri Bhim Singh that the search of the bags should be conducted by a Gazetted Officer of the Police.

On the contrary, the counsel appearing on behalf of the State submitted that the search in this case was conducted in the presence of a Gazetted Officer and no prejudice has been caused to any of the appellants, rendering their appeal without any basis.

After considering the rival contentions of the parties, this Court is of the considered opinion that the offer in this case is partial in nature and it is no offer in the eyes of law. Section 50 of the Act is mandatory in character. It has been introduced with a particular purpose by the Legislature and for the benefit of the person to be searched by the Investigating Officer. A reading of the recovery memo. (Ex. PC) would show that Shri Bhim Singh gave a partial offer to each of the appellants. The relevant words of the Investigating Officer were to the effect `Whether the appellants wanted to give search in the presence of the Investigating Officer or a Gazetted Officer of the Police ?'' The alleged offer does not talk anywhere that Shri Bhim Singh ever inquired from the appellants whether they wanted to give search in the presence of a Magistrate. When the Legislature expects that a particular procedure has to be adopted, it must be adopted. It was the bounden duty on the part of Shri Bhim Singh to lay all the cards before the appellants and it was the right of the appellants to pick up which card they wanted to play with. The Investigating Officer did not apprise the appellants of their statutory right that they could be searched in the presence of a Gazetted Officer or a Magistrate. The offer is confined only to a Gazetted Officer of the Police, which is no offer in the yes of law, as held by the Hon''ble Division Bench of this Court in the case reported as Neki Ram v. State of Haryana, 1997(4) RCR 644. It was held in the said case that when the accused was given option of search before the Deputy Superintendent of Police, who accompanied the Police Party, and that no offer of search before a Magistrate was made to the accused, it was a partial offer and violates the provisions of Section 50 of the Act. The ratio of this citation is applicable to the facts in hand.

There is one more snag in the investigation of this case. The Investigating Officer did not record the statement of any of the appellants to the effect that they had confided in the Gazetted Officer of the Police. The bald statement of the Investigating Officer to the effect that they had confided and reposed confidence in the Gazetted Officer of the Police cannot be accepted as a gospel truth. In suchlike cases, the law expects a greater degree of proof from the side of the prosecution. As I have held above, the option was only partial, thus rendering the recovery of the poppy husk as illegal.

Resultantly, this appeal is allowed. The judgment and order of conviction and sentence passed by the learned Additional Sessions Judge stands set aside and each of the appellants stands acquitted of the charge framed against him. The case property, however, stands confiscated to the State.

During the course of submissions Shri Narottam Kaushal, learned counsel appearing on behalf of the accusedappellants, submitted that the appellants do not claim the vehicle and they have no objection if the same is returned to Shri Rajiv Bhatia son of Shri Inder Nath Bhatia of M/s Surya Financiers, Mandir Marg, Behind Rama Hotel, Karnal. Otherwise also, the vehicle is of Shri Raghvir Singh, who is its registered owner and this vehicle was financed by Shri Rajiv Bhatia of M/s Surya Financiers. In these circumstances, while disposing of Crl. Appeal No. 32SB of 1996 it is hereby ordered that the vehicle, i.e., Maruti Van bearing registeration No. HR057476 shall be handed over to Shri Rajiv Bhatia son of Shri Inder Nath Bhatia aforesaid.

The appellants stand discharged from their personal bonds and surety bonds.