Harnam Singh vs State of Punjab

Dr. Sarojnei Saksena, J.

Petitioner''s learned counsel submitted that only a small quantity of 35 kgs of poppy husk is alleged to have been recovered from the possession of the petitioner. He also pointed out that from the First Information Report reproduced in the petition itself, it is evident that the accusedpetitioner was not informed by the apprehending police officer that he has a right of being searched either before a gazetted officer or a Magistrate. Therefore, it is obvious that the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act were not complied with. To support this contention, he has relied on Amarjit Singh and another v. State (Delhi Admns), 1995(2) R.C.R. 578 . He also contended that no independent witness was joined at the time of alleged search and seizure; hence, the whole of the recovery becomes doubtful.

The learned State counsel relying on State of Punjab v. Jasbir Singh and others, (1996) Supreme Court Cases 288 and State of H.P. v. Pirthi Chand and another, 1996(2) R.C.R. (Crl.) 759 : 1996(2) Supreme Court Cases 37 contended that the provisions of Section 50 of the Act were duly complied with by the Investigating Officer; proper option was given to the petitioner and even if there is any lacuna to the fact that the petitioner was not apprised of the said right under Section 50 of the said Act, it will not entitle him to bail at this stage; the prosecution has yet to adduce its evidence.

So far as nonjoining of the independent witness at the time of search and seizure is concerned, he submits that even this point cannot be considered at the stage of bail. To support that contention, he has relied on Jagdish Singh v. State of Haryana, 1997(2) RCR 355 .

After hearing the rival contentions, in my considered view, bail petition deserves to be rejected.

35 kgs of poppy husk is not a small quantity which can be implanted by any Investigating Officer.

So far as Amarjit Singh''s case (supra) is concerned, no doubt, in the Head note (A) it is mentioned that "In the rukka which was basis of FIR, it was mentioned that accused were informed of their right of being searched before Gazetted Officer No mention, made in the FIR that accused were told of their right to be searched before Magistrate Held, Section 50 not complied with strictly Deposition of Police Officer before Court that accused were informed of their right to be searched either before a Gazetted Officer or before Magistrate was an improvement Accused acquitted. (Para 27)."

I have gone through para, 27 of this judgment. From a plain reading of this para, it is evident that in the rukka which is the basis of the FIR it was recorded that the accused were apprised of their right to get their search being effected from a gazetted officer. Another option of being searched from a Magistrate was not given to the accused person. While the Investigating Officer was in the witness box, he stated that the option was given to the accused persons that of being searched either before the Gazetted Officer or Magistrate. On this fact, while appreciating and evaluating the sworn testimony of the Station House Officer/the Investigating Officer, it was held that this is an improvement in his statement, if such an option would have been given at the time of search, it would have been recorded in the rukka which is the basis of the First Information Report. On this fact, it was held that mandatory provisions of Section 50 of the Act were not complied with and on this count, accused persons were held entitled to acquittal.

In Pirthi Chand''s case (supra), the Apex Court has held that discharge of an accused at the stage of taking cognizance of offence on the ground of non compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act is not proper. It is also held that "the evidence collected in a search in violation of law does not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in the Panchnama to seize the contraband from the possession of the suspect/accused. Though the search may be illegal but the evidence collected, i.e., Panchnama etc. nonetheless would be admissible at the trial. At the stage of filing chargesheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing an illegality by discharging the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into."

Thus, it is a complete answer to both the legal objections raised by the petitioner''s counsel.

Further in Jasbir Singh''s case (supra), it is again held by the Apex Court that "the evidence collected during investigation in violation of the statutory provisions of Section 50 of the Act does not become inadmissible and the trial on the basis thereof does not get vitiated. Each case must be considered on it own backdrop."

In Jagdish Singh''s case (supra) a Single Bench of this High Court has held that the legal objections of noncompliance of provisions of Section 50 of the Act and nonjoining of independent witnesses cannot be gone into at the time of grant of bail.

Thus, all these legal objections raised by the petitioner''s learned counsel are not tenable at this stage and on the basis of these objections, concession of bail cannot be granted to the petitioner.

Considering the quantity of poppy husk alleged to have been recovered from the possession of the petitioneraccused, his bail petition is hereby dismissed.