Kheta Singh alias Teja Singh vs State of Punjab

S. D. Bajaj, J.

While on patrol duty from Bus Adda Termala towards village Kandu Khera A.S.I. Darshan Singh P.W. 2 recovered from the Jhola carried by Kheta Singh accused 5 kgs 500 grams of opium. Head Constable Gurmukh Singh and Constable Mukhtiar Singh attested the recovery.

On being charged with the commission of offence under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 accused Kheta Singh pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated 27th February, 1987 learned trial court convicted accused Kheta Singh under Section 18 of the Act and awarded him rigorous imprisonment for a period of 10 years and fined him rupees one lac. In default of payment of fine convicted accused Kheta Singh was ordered to undergo rigorous imprisonment for a further period of three years. Feeling aggrieved from the order of conviction and sentence aforesaid accused Kheta Singh has filed Criminal Appeal No. 487SB of 1987 in this Court.

I have heard Shri A. K. Kanwar, Advocate for the petitioner, Mr. P. S. Kang, Advocate, for the respondentState and have carefully perused the entire record.

Adverting to the provisions of section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 learned counsel for the appellant contended that in this particular case accusedappellant Kheta Singh was not made aware of the statutory safeguard envisaged therein and asked if he would like himself to be searched by a gazetted officer. This lapse on the part of the investigating agency, according to the learned counsel, vitiates both search and recovery and the accused is entitled to get himself acquitted on this ground alone.

Relevant section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 reads :

"50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subsection (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by any one excepting a female." It has repeatedly been held by this court in Amrit Singh v. State of Haryana, 1990(2) RCR(Crl.) 525 (P&H).Criminal Appeal No. 513DB of 1987, Kuldip Singh v. The State of Haryana, 1989 Chandigarh Criminal Cases 183, Murli Dhar v. State of Haryana, 1990(3) RCR(Crl.) 656 (P&H), Criminal Appeal No. 370SB of 1987 and by the Himachal High Court in State of Himachal Pradesh v. Sudarshan Kumar alias Kala and others, 1989(2) Recent Criminal Reports 317 (DB) : 1989(1) Chandigarh Law Reporter 240 as under :

"The provisions of section 50 of the Act are mandatory in terms and it also stands so settled by judicial precedents, one of which is provided by the judgment of this Court in Hakam Singh v. Union Territory, 1988(2) RCR(Crl.) 20 (P&H) : 1988(2) Chandigarh Law Reporter 75. Reference may here also be made to the judgment of the Division Bench of the High Court of Himachal Pradesh in State of Himachal Pradesh v. Sudarshan Kumar, 1989(2) Recent Criminal Reports 317 : 1989(2) Chandigarh Law Reporters 240 , where it was held that the person about to be searched must be informed of his right, under Sec. 50 of the Act. to be searched in the presence of a Magistrate or a Gazetted Officer. Violation of this provision, it was held, would per se be fatal to the prosecution case. Further, it was observed that such offer, should as far as practical be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case.

In dealing with the provisions of section 50 of the Act, it cannot 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 some whatwary 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 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".

Seen in this light, there can be no escape from the conclusion that violation of the provisions of section 50 of the Act, in the case of the appellant Kheta Singh, stands writ large. This circumstance alone as pointed out in the authorities aforesaid renders the conviction of the appellant wholly unsustainable and the same is accordingly set aside. In result the Criminal Appeal filed by Kheta Singh succeeds and is allowed. Accused Kheta Singh is acquitted. Accused is reported 1 to be on bail. The bail bond furnished by his surety and the personal bond put in by the accused appellant himself shall both stand discharged.