Gurcharan Singh @Channa vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgment/order dated 30.10.1995 passed by the Additional Sessions Judge, Hoshiarpur whereby the appellant has been convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac and in default of payment of fine to further undergo rigorous imprisonment for one year.

The case of the prosecution is that on 28.11.1994, Inspector Amrik Singh along with other police officials/officers was on patrolling duty and was present on canal bridge within the area of village Kangna. A secret information was received that the appellant had been indulging in the sale of poppy husk and that he was present with the bags of poppy husk in the revenue estate of village Mehomoodpur. Efforts were made to join independent public person in the police party but in vain. When the police party reached near Khad in the area of village Mehomoodpur, appellant was found sitting on three bags of poppy husk. On a wireless message, D.S.P. Dilbagh Singh also reached there. On verification the bags were found to contain poppy husk. D.S.P. Dilbagh Singh took out a sample weighing 250 grams from each of the three bags. All the three samples were converted into sealed parcels with the seal of D.S. The three bags containing chura post were also sealed with the same seal. Seal after use was retained by the said D.S.P. The appellant could not produce any licence or permit for keeping poppy husk in his possession. Ruqa Ex.PC was sent to the Police Station on the basis of which First Information Report Ex.PC/1 was recorded. Case property was deposited in the Malkhana. Sample parcels were sent to the office of the Forensic Science Laboratory. On receipt of the report Ex.PG and after completing the investigation a charge sheet was submitted to the Court.

A charge under Section 15 of the Act was framed against the appellant to which he pleaded not guilty and claimed trial.

In support of its case, the prosecution examined three witnesses. A.S.I. Charan Singh was a member of the police party and is a witness to the search and recovery of the poppy husk. Inspector Amrik Singh (PW.2) is the Investigating Officer and it was he who had received the secret information and had apprehended the appellant while sitting on the three bags containing poppy husk. D.S.P. Dilbagh Singh (PW.3) had reached the spot on a request made by Inspector Amrik Singh. He had taken out the samples from the three bags and had converted the samples and the remaining three bags into sealed parcels with the seal of D.S. The report of the Chemical Examiner Ex.PG was tendered in evidence.

In his examination under Section 313 of the Code of Criminal Procedure, the appellant denied the allegations of the prosecution and pleaded false implication. He did not produce any evidence in his defence.

On an appraisal of the evidence produced on the record, the Additional Sessions Judge, Hoshiarpur convicted and sentenced the appellant as stated above. Hence this appeal.

I have heard the learned counsel for the parties and have gone through the record.

Shri Satbir Singh, Advocate, learned counsel for the appellant has argued that the conviction of the appellant is liable to be set aside on the short ground that the provisions of Section 50 of the Act were not complied with by Inspector Amrik Singh or D.S.P. Dilbagh Singh before conducting the alleged search and recovery. On the other hand, Shri Ramanjit Singh, learned Assistant Advocate General, Punjab has argued that the search was conducted by the Gazetted Officer himself which is a due compliance of the said provisions.

I have given my careful thought to the respective arguments advanced at the Bar.

I need not reproduce the provisions of Section 50 of the Act. Enough to say that this section has been enacted to act as a safeguard against vexatious search and unfair dealing and to protect and safeguard the interest of an innocent person. It also provides a weapon to the law enforcement agency against common allegations that the drugs have been planted by these officers. While interpreting this section in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : JT 1994(2) SC 208 , the Apex Court held:

".... In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person 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 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....."

While approving the aforesaid view in Saiyad Mohd. Saiyad Umar Saiyaed and others v. The State of Gujarat, JT 1995(3) SC 489, their lordships of the Supreme Court while holding that the protection under Section 50 of the Act to the accused is sacrosanct and cannot be disregarded, 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 this 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".

It was held by their Lordships that if the provisions of Section 50 of the Act have not been complied with, as stated above, the necessary conclusion would be that the prosecution has not been able to prove that the accused was in possession of the offending article. Thus, it becomes clear that there is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses he will be searched in the presence of a Gazetted Officer or Magistrate. If this mandatory requirement is not complied with, the violation thereof is fatal to the prosecution.

In the present case, there is no mention either in the ruqa Ex.PC or in the First Information Report copy of which is Ex.PC/1 that before conducting the alleged search, the appellant was informed about his right to be searched before a Gazetted Officer or a Magistrate. It is interesting to note that A.S.I. Charan Singh (PW.1) on a suggestion given by the Additional Public Prosecutor in his examinationinchief, has stated that option was given where the appellant stated that he had faith in the police and he did not want to be searched before Gazetted Officer or Magistrate and the said statement was reduced in writing which is Ex.PA. In his crossexamination he was confronted with his statement Ex.DA recorded under Section 161 Cr.P.C. wherein it had not been so mentioned. In other words the witness stands completely contradicted on this point.

Similarly Inspector Amrik Singh has stated in his examination that an option was given to the appellant that if he so desired, he could be searched before a Gazetted Officer or a Magistrate but the appellant reposed confidence in the police and his statement was reduced into writing which is Ex.PA. In his crossexamination he was confronted with the ruqa Ex.PC, prepared by him, wherein these facts have not been mentioned. In other words he also stands contradicted on this material aspect of the case. It appears that both A.S.I. Charan Singh (PW.1) and Inspector Amrik Singh (PW.2) have made improvements in their statements made before the court in contradiction to what is mentioned in the ruqa and the statement recorded under Section 161 Cr.P.C. Therefore, no reliance can be placed upon the testimony of these two witnesses on this aspect of the case. The necessary conclusion is that before conducting the search Inspector Amrik Singh did not comply with the mandatory provisions of Section 50 of the Act which violation is fatal to the prosecution case. I need not go into other arguments advanced by the learned counsel for the appellant at the Bar.

For the reasons mentioned above, I accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge under Section 15 of the Act. The appellant shall be released forthwith, if not wanted in any other case.