Gulzar Singh vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 7.2.1996, passed by the court of Additional Sessions Judge, Sirsa, who convicted the present appellant Gulzar Singh under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "N.D.P.S. Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was ordered to undergo R.I. for a period of 2 years.

The story of the prosecution can be described as follows :

The appellant faced trial under Section 15 of the N.D.P.S. Act on the allegation that 7.10.1993 in the area of Village Santawali, he was found in possession of Poppy Husk without any licence or permit and, thereby allegedly committed an offence under the aforesaid section.

On 7.10.1993 A.S.I. Shri Krishan, Head Constable Raj Kumar, Head Constable Shamsher Singh and Constable Balbir Singh were present at the Bus Stand, Santawali, for patrolling and crime detection. At that time, accused Gulzar Singh appeared there with a bundle on his shoulders. On seeing the police party, he became nervous and took a turn. On the basis of suspicion he was apprehended by the A.S.I. in the presence of the other members of the police party. A.S.I. told the accused that he wanted to take the search of the bundle and whether the latter was interested to give search in the presence of some Magistrate or a Gazetted Officer of the Police department. Notice, Exh. PB was served upon the accused. It was read over and explained to the accused who thumb marked the same in token of the acceptance of the offer. Notice, Exh. PB was also attested by Head Constable Raj Kumar and Head Constable Shamsher Singh, besides the A.S.I. Shri Krishan. Accused vide statement Exh. PB/1 deposed that he wanted to be searched in the presence of a police Gazetted Officer. Thereafter, the police Gazetted Officer, Shri Sajjan Singh, D.S.P. was called at the spot and in his presence, the search of the bundle was taken in which Poppy Husk was found. On weighing, it came to 8 Kilograms. A.S.I. drew a sample of 100 grams of Poppy Husk and made a sealed parcel thereof by using the seal of "SS" of the D.S.P. and the remaining Poppy Husk was separately sealed. The entire case property was taken into possession vide recovery memo. Exh. PA, which was attested by Sajjan Singh, D.S.P., Head Constable Raj Kumar and Head Constable Shamsher Singh. The seal after used was kept by the D.S.P. Resultantly, Ruqa, Exh. PC was sent to the Police Station, Rania, on the basis of which formal F.I.R. Exh. PC/1 was recorded by the Moharrir Head Constable Randhir Singh. The A.S.I. prepared the rough site plan, Exh. PD, of the place of recovery and recorded the statements of the witnesses. On return to the Police Station, the A.S.I. deposited the case property with the Moharrir Head Constable for safe custody and the accused was formally taken into custody. The sealed sample of the Poppy Husk was sent to the office of the Chemical Examiner, who vide report, Exh. PG, declared the contents as Poppy Husk. On the completion of the investigation of the case, the accused was challaned under section 15 of the N.D.P.S. Act in the court of the Illaqa Magistrate, who completed the formalities of the law and supplied the documents to the accused as relied upon by the prosecution and finally committed the accused to the court of Sessions. The learned trial Court framed the charge under Section 15 of the N.D.P.S. Act against the appellant. It was read over and explained to him to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Sajjan Singh, D.S.P. and the Investigating Officer, A.S.I. Shri Krishan, who appeared as PW1 and PW2, respectively. The prosecution also tendered into evidence the affidavits, Exh. PE and PF of Randhir Singh, Moharrir Head Constable and Bahadur Singh, Constable, respectively, besides the report of the Chemical Examiner, Exh. PG and closed the case.

On the closure of the prosecution evidence, the statement of the accused was recorded under Section 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and stated that he was innocent. When called upon to enter defence, the accused examined Mani Ram as DW1.

The learned trial Court believed the prosecution version and rejected the defence story and convicted and sentenced the appellants in the manner stated above. Aggrieved by his conviction and sentence, the present appeal was filed by the appellant, which I am disposing of with the assistance rendered by Sarvshri S.S. Sidhu and D.R. Punia, Advocates appearing on behalf of the appellant and Shri Sanjeev Sheoran, Advocate, appearing on behalf of he respondent, and with their assistance have gone through the record of the case.

It is a case of chance recovery. The Hon''ble Supreme Court of India in Mohinder Kumar v. State, Panaji Goa, 1995(2) Recent C.R. 599 , has been pleased to hold that the mandatory provisions of Sections 42 and 50 of the N.D.P.S. Act are supposed to be followed from the stage when the officer comes to believe that the accused persons were in custody of narcotic drugs. Thus, it can be safely inferred that Section 50 of the N.D.P.S. Act could also come into play in the case of a chance recovery.

The case set up by the prosecution itself is that when the accused tried to take a turn, he was apprehended on the basis of suspicion that perhaps he might be in possession of some incriminating articles. Section 50 of the N.D.P.S. Act enjoins a duty upon the Seizing Officer to apprise the person to be searched that the latter had the option to be searched in the presence of a Gazetted Officer of the departments mentioned in Section 42 of the N.D.P.S. Act or before a Magistrate. The contention of the learned counsel appearing on behalf of the appellant is that the mandatory provisions of Section 50 of the N.D.P.S. Act have not been complied with in the present case as the option which had been given to the appellant was partial in nature and, as such, a valuable right of the appellant had been reserved by the Investigating Officer by confining the option to a limited extent.

I find merit in the contention of the learned counsel for the appellant. In the present case, the socalled compliance of Section 50 of the N.D.P.S. Act is defective on both counts. The first document which was prepared at the spot by the Investigating Officer is Exh.PB the notice which was served upon the appellant. According to this notice, the Investigating Officer had mentioned whether the appellant was interested to be searched in the presence of a Magistrate or a police Gazetted Officer. It has not been mentioned in the notice, Exh. PB, whether the appellant wanted to be searched in the presence of a Gazetted Officer because Section 42 of the N.D.P.S. Act talks of several Gazetted Officers of the Departments of Police, Narcotics, Customs, etc. Restricting the right of the appellant that he could only be searched in the presence of a Gazetted Police Officer is a violation of the provisions of Section 50 of the N.D.P.S. Act. Notice Exh.PB, is not a substantive piece of evidence. It is only a corroborative piece of evidence to the substantive statement which was supposed to be made by the Investigating Officer during the trial. Now, we have to see what type of statement the Investigating Officer made before the learned trial Court. This witness appeared as PW2. His statement reads as follows :

"I gave him notice Ex.PB that he was to be searched on suspicion of narcotic substance and inquired if he wanted search before gazetted officer or higher police officer. He gave reply Ex. PB/1 that higher police officer be called."

The reading of the above would show that it is nowhere mentioned in the substantive statement of the Investigating Officer that he told the appellant that he had the right to be searched in the presence of a Magistrate. Thus, the options were confined to a Gazetted Officer or a higher police officer which is against the provisions of Section 50 of the N.D.P.S. Act. When the mandatory provisions of Section 50 of the N.D.P.S. Act have not been complied with, the effect of such noncompliance is that it vitiates the entire recovery and the trial. The learned counsel appearing on behalf of the State has no answer to the submissions raised by the learned counsel for the appellant.

In this view of the matter, I accept this appeal, set aside the judgment and order of the trial court and acquit the appellant of the charge framed against him. Intimation be sent to the jail authorities for the release of the appellant forthwith, if not wanted in any other case. The case property, however, stands confiscated to the State.

Appeal allowed