Labh Singh vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Sirsa in Sessions Case No. 61 of 1988 convicting the accusedappellant for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

According to the case of the prosecution, on 24.11.1987, Assistant Sub Inspector of Police alongwith other Constables was present at Chautala Road, near Bishnoi Mandir, Dabwali. The accused was seen coming from the side of Anaj Mandi with a bag. On suspicion, he was apprehended and he was asked whether he wanted to be produced or searched in the presence of a Gazetted Officer or a Magistrate. The offer was declined by the accused and thereafter the Assistant SubInspector conducted the search of the bag which was carried by the accused and bag contained 1100 gms. of opium wrapped in a wax paper. Sample of 50 gms was taken and sealed separately and the rest of the opium was also sealed. The accused was arrested and the case was registered against the accused under the Narcotic Drugs and Psychotropic Substances Act. After completion of the investigation, the chargesheet has been filed against the accused.

On the basis of the material placed before him, the learned Magistrate committed the case to the Sessions. After committal, the learned Additional Sessions Judge framed the charge against the accused.

In order to prove the guilt of the accused, the prosecution examined three witnesses and marked certain documents. After closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. In defence, the accused examined four witnesses.

On a consideration of the evidence on record, the learned Sessions Judge convicted the accused for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. one lac. Hence this appeal.

It is the case of the prosecution that on 24.11.1987 when the accused was coming carrying a bag, on suspicion he was searched by the Police and found that the bag contained 1100 gms. of opium wrapped in a wax paper.

Though PW2 and PW3 stated that the accused was asked whether he would like to be searched in the presence of a Gazetted Officer or Magistrate, there is nothing on record in writing that such an offer had been made to the accused. It is also the case of the prosecution that the accused offered to be searched by PW2, who is the Assistant SubInspector. There is nothing on record in writing that the accusedappellant denied to be searched in the presence of a Gazetted Officer or a Magistrate.

Admittedly, the Police party did not join any independent witness. Except the oral evidence of PW2 and PW3, there is no other evidence to show that any offer was made to the accused to be searched in the presence of a Gazetted Officer or a Magistrate. The evidence of PW2 and PW3 does not inspire any confidence. I am, therefore, of the opinion that the prosecution failed to prove that the accused was apprised of his right to be searched in the presence of a Gazetted Officer or a Magistrate. In this context, it is useful to refer to the decision of the Apex Court in Banobi and another v. State of Maharashtra, 1999(4) RCR(Crl.) 538 (SC) : VIII (1999) SLT 463 wherein it has been observed as follows :

"It was next contended by the learned Counsel for the appellants that while conducting the search of the person of appellant No. 1, there was non compliance with the requirement of Section 50 of the N.D.P.S. Act and therefore we should not accept the evidence with respect to recovery of 13 small packets of heroin. The learned counsel for the respondent submitted that P1 Sheikh had not informed appellant No. 1 about her right to be examined in the presence of a Magistrate or a Gazetted Officer. The learned counsel is right in this behalf and, therefore, the conviction of appellant No. 1 under Section 21 of the Act for possessing heroin will have to be set aside.

In view of the judgments of the Apex Court in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 737 : JT 1994(2) SC 108 and State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : JT 1999(4) SC 595, I am of the opinion that the appeal deserves to be allowed.

Accordingly, I allow the appeal, set aside the conviction and sentence imposed on the accusedappellant and acquit him of the charge. The accused is on bail. His bail bonds shall stand cancelled.