Karambir vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 22.7.1996 passed by the Court of Additional Sessions Judge, Hissar, who convicted the appellant Shri Karambir under Section 15 of the Narcotic Drugs & Psychotropic Substances Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was further directed to undergo rigorous imprisonment for a period of two years.

Shri Karambir appellant faced a charge under Section 15 of the N.D.P.S. Act on the allegations that on 15.4.1994 in the area of village Siwani Bolan he was found in possession of 80 Kgs. of poppyhusk lying in two bags without any licence or permit and thereby allegedly committed an offence punishable under Section 15 of the N.D.P.S. Act.

The story of the prosecution in the trial Court was that on 15.4.1994 Shri Som Raj, SI/SHO, Police Station Agroha along with other police officials was going on patrol duty towards village Nehla from the side of Agroha. At the bus stand of Siwani Bolan, Wazir Singh, an independent witness, was associated. When the police party was talking with him, accused was found sitting on the two bags and on seeing the police party he got down from those bags and sat on the ground with the pretext to urinate. On suspicion, the appellant was apprehended. The Incharge of the police party told the appellant that the former had a suspicion that the latter was keeping some narcotic substance. Shri Darshan Kumar Bali, DSP, Siwani was called at the spot and in his presence the search of two bags was conducted. It was found that these bags contained poppyhusk. On weighment it came to 80 Kgs. The DSP separated 200 grams of poppyhusk by way of sample from each bag and made sealed parcels thereof by using his own seals. The remaining poppyhusk was separately sealed in the bags and the seal after use was handed over to HC Sunder Singh, a member of the police party. The appellant could not produce any permit or licence. Resultantly, ruqa Ex. PF was sent to the Police Station Agroha, on the basis of which formal F.I.R. No. 84 dated 15.4.1994 under Section 15 of the N.D.P.S. Act was registered. The case property was taken into possession vide recovery memo Ex.PD. Rough site plan Ex.PG of the place of arrest was prepared with correct marginal notes. The report regarding the arrest of the appellant was also sent to the higher authorities. The sealed parcels of the samples of poppyhusk were sent to the office of Forensic Science Laboratory, who vide report Ex.PC declared the contents as poppystraw and on completion of the investigation of the case, the appellant was challaned in the Court of IIIaqa Magistrate, who supplied the copies of the documents to him according to law and free of costs and vide commitment order dated 9.2.1995 committed the appellant to the Court of Sessions in order to face the trial.

Vide orders dated 15.3.1995 the appellant was chargesheeted under Section 15 of the N.D.P.S. Act. The charge was read over and explained to him, to which he pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined PW4 Sunder Singh, HC, PW5 Som Raj, SI and PW6 Darshan Kumar Bali, DSP besides tendering the statements of formal witnesses, who appeared as PW1 and PW3. Finally after tendering the report of the Forensic Science Laboratory, the prosecution closed the case in the trial Court.

The statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those circumstances and stated that he was innocent.

The learned Additional Sessions Judge relied upon the prosecution version and rejected the defence story. The court convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence the present appeal which I am disposing of with the assistance rendered by Shri Atul Lakhanpal, learned counsel appearing on behalf of the appellant and Shri J.S. Ahlawat, learned advocate appearing on behalf of the State. I have also gone through the record of the case with their assistance.

The counsel for the appellant submitted that the present recovery is covered under Section 43(b) of the N.D.P.S. Act and in these circumstances the provisions of Section 50 of the Act were supposed to be complied with by the Investigating Officer. These provisions are mandatory in character. There is violation of these provisions and in these circumstances the entire recovery stands vitiated. On the contrary, it is stated by Shri Ahlawat that it was a recovery per chance and in these circumstances the provisions of Section 50 were not applicable and the trial Court has rightly held as such. Further it was submitted by Shri Ahlawat that in this case the search has been conducted by a gazetted officer and no prejudice has been caused to the appellant. The appellant has failed to establish on record that the police officials had any enmity with him. Thus the conviction should be maintained.

After considering the rival contentions of the parties, this Court is of the considered opinion that the mandatory provisions of Section 50 were supposed to be complied with by the S.H.O./D.S.P. A reading of Section 50 would show that these provisions would come into play if the arrest of a person is made under Section 41, 42 or 43. True, these provisions of Section 50 will not come into play if the recovery is per chance and when the Investigating Officer was not in a position to conceive a reasonable belief that the person to be searched was not having any contraband article punishable under Chapter IV of the N.D.P.S. Act. Reverting to the facts in hand, it is specifically alleged in two vital documents Ex.PE and Ex.PF that SHO Som Raj had got a reasonable belief that the appellant was in possession of some contraband article which constitute an offence under Chapter IV of the Act. A reading of Ex.PE reveals that SHO Som Raj conceived a reasonable belief that the appellant was in possession of some contraband article the possession of which is punishable under the Narcotic Act. In these circumstances it cannot be said that it was a recovery by chance. A reading of Ex.PF has also repeated the same thing as has been done in Ex.PE Therefore, it was mandatory on the part of the S.H.O. as well as the D.S.P. to give an option to the appellant whether he was interested to give the search of the bags in the presence of a Gazetted Officer or a Magistrate. In the present case the S.H.O./D.D.P has suomoto conducted the search without giving option to the appellant and this procedure is not warranted according to law making the entire recovery as illegal. Had the S.H.O. or the D.S.P. given the option as required under Section 50, the appellant could have exercised the option either inviting the gazetted officer of any of the departments mentioned in Section 42, or a Magistrate. His option has been restricted. The S.H.O. suo moto had required the services of D.S.P. of his own department. The entire procedure adopted by the S.H.O is totally illegal which even vitiates the trial.

It is the admitted case of the prosecution that when the police party was present at the bus stand, its incharge associated Shri Wazir Singh, an independent witness. But strange enough that Wazir Singh has not been examined. The case of the prosecution is now totally based on the statements of two police officials, who would be interested in the success of the case. This Court is cognizant of the fact that the statements of the police officials/public officials are at par with ordinary citizens but a rule of prudence requires that before recording the conviction, the statements of such police officials should be corroborated by some independent witness especially when the police had opportunity to associate independent witnesses. In this case the independent witness was with the police. He has not been produced and has not supported the allegations. The recovery was from a public place i.e. bus stand and during day time. Several persons must be present at that place. No effort has been made by the S.H.O. or by the D.S.P. to associate any independent witness, creating a reasonable doubt in the mind of the Court. Thus, it can be said that the prosecution has been able to prove the allegations. In this view of the matter, I accept this appeal, set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him.

The case property is ordered to be confiscated to the State.

Intimation be sent to the jail authorities about the acceptance of this appeal and the jail authorities are directed to release the appellant forthwith, if not required in any other case.