Krishan Kumar vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Krishan Kumar (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Karnal dated 23.5.1995 and 24.5.1995 respectively. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereafter described as ''the Act''). By the subsequent order dated 24.5.1996 the appellant was sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for 3 years.

The relevant facts giving rise to the present appeal are that prosecution alleged that on 28.9.1993 ASI, C.I.A. Staff, Karnal Dilbag Rai along with other police officials was present at Octroi Post Ghoghripur. They were on patrol duty. The appellant was noticed holding a bag in his right hand. He was coming from Karnal side. On seeing the police party, he retreated. On suspicion he was stopped. ASI Dilbag Rai told the appellant about the suspicion and that whether he would like his search be conducted in presence of a Gazetted Officer or by him. The appellant replied that search be conducted in presence of a Gazetted Officer. Constable Ashok Kumar was deputed and he called the Deputy Superintendent of Police Chanda Singh. Thereafter the search of the bag was conducted. It contained Charas wrapped in a polythene bag of yellow colour. 50 grams was taken as the sample. The sample and the rest of the Charas weighing 700 grams were converted into two different parcels and sealed with the seal of ''DR''. Both the parcels were taken into possession vide a recovery memo. Ruqa was sent to the police station, on basis of that First Information Report was recorded by SI Suba Singh. The appellant and the case property were brought to the police station and produced before Ram Kumar, Station House Officer. He verified the facts and affixed his seal on the representative sample and the other packets containing rest of the Charas. Subsequently, the sample was sent to the Forensic Science Laboratory for chemical analysis. On receipt of the report that it was Charas, challan as against the appellant was filed.

The learned trial court framed a charge against the appellant for the offence punishable under Section 20 of the Act. He pleaded not guilty and claimed a trial. In support of its case, the prosecution examined 3 witnesses which included ASI Dilbag Rai and DSP Chanda Singh as PW2 and PW1 respectively. The statement of the appellant was recorded. The incriminating circumstances appearing in evidence against him were put to him in the form of different questions. Appellant denied the recovery of Charas from his person. He stated that one Radhu Ram and he himself were Chelas of Baba Jeet Gir. The land of the Baba is located in City Karnal. The political bosses of Karnal City had a dispute with respect to said land. The appellant objected in not getting possession of the land. It annoyed the political bosses, as a result of which he has falsely been implicated.

The learned trial Court on appraisal of the evidence held that the official witnesses can well be believed. It also concluded that there has been compliance of the statutory provisions and consequently held the appellant guilty of the offence punishable under Section 20 of the Act. The order pertaining to the sentence referred to above followed. Aggrieved by the same, the present appeal has been filed.

ASI Dilbag Rai PW2 is the solitary witness examined with respect to the proceedings that took place before the search was effected. He stated that on 28.9.1993 he was posted in the C.I.A. Staff. While patrolling with others, the appellant was noticed coming from Karnal side. On suspicion he was stopped. An offer was given as to whether he would like to be searched in presence of a Gazetted Officer or not. The answer was in affirmative. Thereupon the Gazetted Officer was called.

Taking advantage of this evidence on the record, it has been argued that provisions of subsection (1) of Section 50 of the Act have not been complied with because the offer given to the appellant was partial. The said contention cannot be ignored. It has substance. The Supreme Court in the case State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : AIR 1994 SC 1872 emphatically and categorically held that provisions of subsection (1) of Section 50 are mandatory. In other words, offer must be given in terms of the said provisions to an accused that if he likes his person can be searched before a Gazetted Officer or a Magistrate. It is thereafter that the said person exercises his option in this regard. Admittedly, in the present case, the option given to the appellant was only confined to his right to be taken before a Gazetted Officer. No option was given that if he likes he can be taken to a Magistrate. It follows from the above said that the option given was partial. Since provisions of subsection (1) of Section 50 are mandatory, partial option will not serve the purpose and the appellant''s counsel rightly urged that prejudice is caused.

A similar argument was advanced before a Bench of this Court in the case of Chet Ram v. State of Haryana, 1996(1) Recent CR 263 and holding that the option given was partial. The appellantaccused was acquitted. Even in the case of Lal Singh v. State of Punjab, Criminal Appeal No. 721SB of 1995, decided on 14.3.1996 the said contention prevailed. The view of this Court in the case of Bal Vinod v. State of Haryana, Criminal Appeal No. 429SB of 1993, decided on 3.5.1996 [1996(3) Recent Criminal Reports 219] was similar. There is no ground to take any other view and, therefore, it must be held that when partial option was given and there was noncompliance of sub section (1) of Section 50 of the Act, the search would be vitiated.

Another fact highlighted which also cannot be ignored is that no public witness had been joined in the raiding party. The learned trial Court expressed the view that the statement of the official witness stands on the same footing as a public witness. The said view point is valid with the rider that attempt must be made to join a public witness. There can be occasions when public witness could not be joined, is not available or the nature of events was such that there was no occasion to join a pubic witness. However, if a public witness could be joined and has not been joined, then a reasonable explanation should be forthcoming. If the explanation is unsatisfactory, it would reflect adversely on the case of the prosecution.

In the present case ASI Dilbag Rai stated that he had tried to associate independent witnesses but they refused to become a witness. He had not initiated any proceedings against them. The important aspect in the facts of the present case is that he had even not noted this fact in his case diary. It is, therefore, difficult to believe that a genuine attempt was made to join public witnesses or the same was not joined. The explanation cannot be accepted. Once the explanation is not correct, benefit of doubt must accrue to the appellant.

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.