Jaspal Singh vs State of Punjab

V.S. Aggarwal, J.—This is an appeal filed by Jaspal Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Amritsar dated 14.11.1994. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). By virtue of the subsequent order of sentence of the same date, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for a year.

The relevant facts of the prosecution case are that on 19.8.1993 ASI Parshotam Lal accompanied by ASI Harbhajan Singh, ASI Kishori Lal and other police officials were going from police post, Vijay Nagar Amritsar to Mustfabad. A picket was held near the backside of the Power House near the Railway crossing. At about 7.00 P.M. the appellant came from the said of Ganda Nallah. On suspicion he was stopped. He was told that if he likes his person can be searched before a Gazetted Officer. A wireless message was sent to Deputy Superintendent of Police Mohinder Singh who reached the spot. The appellant was carrying a bag on his right shoulder. The Deputy Superintendent of Police reached the spot. In his presence, the person of the appellant was searched. The bag contained opium wrapped in a glazed paper. It was found to be 1 Kilogram. 10 grams was taken as the representative sample. The sample and the rest of the opium were converted into separate parcels and sealed with the seals of ''PL'' and ''MSS''. After use both the seals were given to DSP Mohinder Singh. Both the packets were taken into possession vide a recovery memo.

The appellant was arrested. Rough site plan was prepared. Ruqa was sent to the police station on the basis of which formal first information report was recorded. On returning to the police station, the case property was deposited with MHC Sher Jang. Subsequently, the representative sample was sent for chemical analysis. The report was received that it was opium. It is on these broad facts that challan was filed against the appellant.

The learned trial Court framed charge against the appellant for the offence punishable under Section 18 of the Act. Needless to say that appellant pleaded not guilty and claimed a trial. The prosecution examined three witnesses pertaining to the recovery of opium namely ASI Parshotam Lal PW1. ASI Kishori Lal PW2 and DSP Mohinder Singh PW3. Statement of C. Dwarka Dass was also recorded. The various circumstances were put to the appellant when he was examined in terms of Section 313 Cr.P.C. He denied recovery of opium from his person and contended that he had falsely been implicated. His precise defence was as under :

"I am innocent. I have enmity in my village. The I.O. remained posted at PS Lopoke under which my village falls. From those very days during his posting in PS Lopoke, the I.O. was inimical towards me at the instance of my rivals in the village. Thus, the I.O. after abducting me form my village at the instance of other party, planted this case on me. No recovery was effected from me. The story regarding recovery of alleged amount of Rs. 279/ is also fabricated and only to strengthen the case of the prosecution against me."

In defence the appellant examined C. Dwarka Dass DW1 who testified on the basis of Register No. XIX that there is reference about deposit of the bag alongwith case property. He further stated that there is a note regarding sending of the sample to the Chemical Examiner but his signatures were not obtained against this entry. DW2 Gurdial Singh Sarpanch testified that the search of the house of the appellant was conducted but no incriminating evidence was found. As per this witness, the appellant was apprehended at the instance of Raghbir Singh who was on visiting terms with ASI Parshotam Lal.

The learned trial court on appraisal of the said evidence held that the prosecution has successfully proved the recovery of 1 Kilogram opium from the bag. The trial court concluded that provisions of Section 50 of the Act had been complied with and further that minor defects that some time was seen over written on the sample will not shake the prosecution evidence. With these findings, the impugned judgment and the order of sentence were recorded.

At the outset, learned counsel for the appellant argued to the effect that a valuable right under subsection (1) of Section 50 of the Act was lost to the appellant and there was total noncompliance of the same.

The evidence of the prosecution witnesses in this regard was that when appellant was stopped on suspicion, he was found to carry a bag on his right shoulder. ASI Parshotam Lal PW1 when appeared in the witness box stated :

"He was carrying a bag on his right shoulder and he was told that his person was to be searched and further told about his right for search before a Gazetted Officer. At this I sent a wireless message to Sh. Mohinder Singh DSP the incharge of our Ilaqa to reach the place of recovery. The DSP searched my search (person ?) and on his direction I conducted the person of the accused."

Statement of ASI Kishori Lal PW2 was no different and in his own words in this regard he stated :

"At about 7.00 P.M. the accused came on the Patri of Gandha Nallah. He was carrying a bag on his right shoulder. On suspicion he was stopped and he was told that his person was to be searched and that in case he wanted he could be produced before a Gazetted Officer. The accused wanted to call some DSP. ASI Parshotam Lal sent message to DSP S. Mohinder Singh. DSP S. Mohinder Singh reached the place and conducted the personal search of the accused, who is now present in the court."

It is this evidence which gives the cause to the appellant to urge that he was not told as to why his person is to be searched and secondly there was no complete option given that if he likes his person can be searched before a Gazetted Officer or a Magistrate. At best it was a partial option.

There is no controversy that provisions of subsection (1) of Section 50 of the Act are mandatory. This controversy has been set at rest in the case of State of Punjab v. Balbir Singh, 1994(1) RCR (Crl.) 737 : 1994(3) SCC 299. The Supreme Court while considering the scope of Section 50(1) of the Act further observed :

"The words ''if the person to be searched so desires'' are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search would be conducted. 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 of his right that if he so requires 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 a Gazetted Officer or a Magistrate if he so requires, since such a search would impart such 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 is obligatory on the authorised officer to inform the person to be searched of his right. (emphasis added)."

it is abundantly clear from the aforesaid that the person concerned must be made aware of his right that if he likes his person can be searched before a Gazetted Officer or a Magistrate. That right is not an idle formality. It can only be exercised provided the said person is informed of the suspicion against him so that he can effectively exercise the same. More so when suspicion has arisen or secret information has been received merely stating that if he likes he can be taken before a Gazetted Officer, therefore, does not make a person aware of the facts to exercise the right. Nothing of this type has been conveyed to the appellant.

In addition to that the option given was totally partial, the appellant was not told that if he likes his person can be searched before a Magistrate. In fact the evidence on the record makes the whole version believe. Not only a partial option was given, the statement of ASI Parshotam Lal indicates that appellant was told about his right to be searched before a Gazetted Officer. He does not state that what was the answer given and thereupon he sent the wireless message to Deputy Superintendent of Police Mohinder Singh. ASI Kishori Lal makes a departure from it and adds that appellant was told that if he likes his person can be searched before a Gazetted Officer. The appellant wanted that some Deputy Superintendent of Police should be called. The said version cannot be believed. It is not understandable as to why the appellant would insist that Deputy Superintendent of Police should be called . He was only told that a Gazetted Officer could be called for the search. The likelihood of the answer so given is remote and, therefore, one is constrained to observe that what is being stated by the official witnesses, in the facts of the case cannot be accepted. Thus, it must be held that provisions of sub section (1) of Section 50 of the Act were not complied with. When provisions of subsection (1) of Section 50 of the Act were not complied with, the search would become invalid. That being so, the appellant would be entitled to the benefit of doubt.

For these reasons, the appeal is accepted. The judgment and the order of sentence passed by the learned trial Court are set aside. The appellant is acquitted giving him the benefit of doubt. He be released if not required in any other case.

JUDGMENT accordingly.