Inderjit Singh vs State of Haryana

H.S. Bedi, J. (Oral)

The prosecution story in brief is as under :

On July 31, 1986, Inspector Raj Pal Singh of Police Station City Karnal, was on patrol duty with ASI Dharam Singh RW1 and some other police officials. When they reached the can bridge on Kachhwa Road, they found the accused coming from the side of Karan Lake holding a bag in his right hand. On seeing the police party, the accused tried to retrace his steps which excited the suspicion of the police party. He was, accordingly, nabbed and before his search was made, Inspector Raj Pal Singh PW2 gave him an offer as to whether he would like to be searched before a Gazetted Officer but he stated that as he reposed confidence in the police officer he could be searched. The accused was, accordingly, searched and this led to the recovery of 1 Kg 800 grams of opium from the bag that he was carrying. After completion of the necessary investigation, the accused was challaned and charged for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called ''the Act'') and as on he pleaded not guilty, was brought to trial .

The prosecution in support of its case relied primarily on the ocular testimony of ASI Dharam Singh PW1 and Inspector Raj Pal Singh PW2 and also produced the other evidence essential to the prosecution.

When examined under Section 313 of the Code of Criminal Procedure, the accused denied the allegations against him and pleaded that he had been implicated in this case on account of the intervention of Inspector Raj Pal Singh for certain reasons. He also examined one Gurcharan Singh DW1 as his witness.

The trial court came to the conclusion that the evidence of the police officials inspired confidence and a conviction could be recorded merely on their statements that even otherwise, the Investigating Officer had made strenuous efforts to secure; the presence of an independent witness, though without success, that the discrepancies in the statements of the prosecution witnesses were trivial in nature and could be ignored; that the defence version was not probable as DW1 Gurcharan Singh was the uncle of the accused, he was bound to depose in his favour and having held as above, convicted and sentenced the accused to undergo R.I. for ten years and also a fine of Rs. one lac and in default thereof to further undergo R.I. for five years more. Hence this appeal.

I have heard the learned counsel for the parties and have gone through the judgment with their assistance.

Mr. R.S. Cheema, the learned Senior counsel appearing in support of this appeal has first and foremost raised the point that provisions of Section 50 of the Act had not been fully complied with inasmuch as both Inspector Raj Pal Singh PW2 and ASI Dharam Singh PW1 had clearly stated that the only offer given to the accused was as to whether he would like to be searched in the presence of a Gazetted officer and as such the offer had been only a partial one. He has relied upon the judgments reported as State of Punjab v. Balbir Singh, 1994(1) RCR (Crl.) 737 : 1994(3) SCC 299 and Mohinder Kumar v. State of Goa, 1995(2) RCR 599 to contend that the provisions of Section 50 of the Act having been held to be mandatory and their noncompliance fatal to the prosecution, the accused was entitled to acquittal on this short ground. He has urged that in any case, even if it would be presumed that an offer had been made in terms of Section 50 of the Act, that offer in order to become valid was further required to be noted in the form of a memo as held by this Court in Teja Singh v. State of Punjab, 1996(1) Recent R.C. 753 and Criminal Appeal No. 206SB of 1995 Vijay Shankar v. State of Punjab, decided on March 27, 1996.

As against this, Mr. N.K. Sanghi, learned Deputy Advocate General, Haryana appearing for the State, has urged that the provisions of Section 50 of the Act were not applicable to the situation in hand as the meeting between the police party and the accused on the date in question happened to be a chance encounter. He too has relied on Balbir Singh''s case (supra).

I have heard the learned counsel for the parties on this aspect and find that this appeal deserves to succeed. From the story as narrated by Raj Pal Singh Inspector PW2 and Dharam Singh ASI PW1 it is apparent that only a partial offer had been made to the accused as he was merely asked as to whether the would like to be searched in the presence of a Gazetted Officer and the further requirement in terms of Section 50 of the Act that an offer that he could be searched in the presence of Magistrate, was admittedly not given. It is true that Balbir Singh''s case (supra) pertained to a search conducted on prior information and the observations with regard to the mandatory nature of Section 50 of the Act, were, therefore, made in that context. The Hon''ble Supreme Court, however extended the applicability of section 50 of the Act even in a case of chance encounter between the accused and the police party in Mohinder Kumar''s case (supra) and observed that if the suspicious conduct of the accused had aroused the suspicion of the police party and led to his apprehension and subsequent seizure, the provisions of Section 50 of the Act would have to be complied with from that stage. The matter would, therefore, have to be examined in that background. It has come in the statements of ASI Dharam Singh PW1 and Inspector Raj Pal Singh PW2 that it was the suspicious conduct of the accused in attempting to retrace his steps on seeing the police party, that had excited their suspicion and led to his arrest and subsequent search. To my mind, therefore, the provisions of section 50 of the Act had to be complied with from that very stage. Admittedly, this has not been done.

For the reasons recorded above, the other points urged by the learned counsel for the appellant need not be gone into. This appeal, is accordingly, allowed and the appellant is acquitted of the charge levelled against him.