Har Narain vs State of Haryana

G.S. Chahal, J.

Har Narain has come to this Court in this appeal against the judgment of conviction and order of sentence dated February 8, 1989, vide which he was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (for short NDPS Act), 1985 and sentenced to undergo 10 years rigorous imprisonment and a fine of Rs. I lac, or in default to further undergo two years rigorous imprisonment.

The appellant was sent up for trial on the allegations that on December 18, 1987, a police party headed by ASI Dharam Vir noticed the appellant coming from the side of village Lohgarh. On seeing the police party, the appellant tried to escape and his movement being suspicious. He was intercepted. On interrogation, the appellant disclosed that the gunny bag contained poppyhusk. The bag was then searched and 10 kgs. poppyhusk was found, out of which a sample weighing 100 gms was withdrawn, ''The sample and remaining poppyhusk were sealed and taken in possession ''vide Ex. PA. Formal FIR Ex. PB was recorded in the Police Station and the case was registered. Rough site plan Ex. PC was also prepared and the case property Ex. P1 was banded over to the MHC After obtaining the report of the chemical examiner Ex. PE the appellant was sent up for trial.

The prosecution examined PW1 SubInspector Dharmvir Singh and PW2 H. C. Chandgi Ram as witnesses of recovery, who corroborated the version given above.

Affidavits of MHC Hari Singh, Ex. PD and H. C. Jagdish Singh, Ex. PF, also tendered. 10

The appellant denied the allegations of the prosecution and claimed innocence. He however, did not lead any evidence in defence.

Mr. Rana, who appears for the appellant urges that the mandatory provisions of Section 50 of the Act having not been complied with, the search must be held to be illegal and no conviction should be passed. Before the trial Court, the prosecution had relied on the fact that SubInspector Dharmvir Singh had stated in memo Ex. PP that the appellant had been given the choice to be searched in the presence of a gazetted officer, but he had waived that right. While in witness box also, SubInspector Dharamvir Singh had confirmed that fact.

The scope of Section 50 of the Act was considered by a Division Bench of this Court in 1990 (2) Recent CR 525. Their Lordships also considered another Division Bench judgment of Himachal Pradesh High Court in State v. Sudarshan Kumar, 1989(2) CLR 240. Their Lordships made the follow observations with respect to the scope of Section 50 of the Act :

"16. In dealing with the provisions of Section 50 of the Act it can not, but be observed that. it would be rendering them negatory if the safeguard provided thereby, to the person apprehended, to be searched in the presence of a gazetted officer or magistrate, can be brushed aside on merely the bald statement of a police officer, that such offer was declined by him As is well known the legislature has always been somewhat wary of accepting statements made to the police, as would be apparent from the provisions of Section 162 of the Code of Criminal Procedure, whereby statements made by an accused to the police. In the course of investigation, are made inadmissible and if such statement is a confession; it is also hit by Section 25 of the Evidence Act. The provisions of Section 50 of the Act have thus to be construed in this context. To give meaning and content to the clear legislative intent underlying the safeguard provided by Section 50 of the Act, cogent and reliable evidence and not merely the statement of a police officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a gazetted officer or magistrate, but he chose to decline this offer. In Sudarshan; Kumar''s case (supra), it has no doubt been suggested that such offer should be made before two reliable and independent witnesses, but with respect, it would be appropriate and more in consonance with the interests of justice that as. a rule of general at practice, the Person apprehended should be taken before a gazetted officer or magistrate and searched in his presence. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Search otherwise than before a gazetted officer or magistrate should, therefore, be the exception and that too for sound and convincing reasons founded upon reliable material on record, the onus of showing that the person to be searched declined such option being upon the prosecution."

Adjudged on the guidelines laid down by the Division Bench the mere saying of Dharmvir Singh that the appellant had waived his right of being searched before a gazetted officer cannot be accepted in the absence of independent corroboration. The prosecution has, thus, failed to discharge the onus that the appellant had waived of his right of being searched before a gazetted officer.

I, thus, conclude that the provisions of the Act had not been complied with and on the evidence brought on the record, it cannot be safely held that the prosecution case was proved beyond reasonable doubt. I hereby accept the appeal and after setting aside the judgment of conviction and order of sentence, acquit the appellant. Fine. if paid, shall be refunded to him.