Lakhbir Singh vs State of Punjab

B. Rai, J.—This appeal has been directed against the judgment of conviction dated 04.01.1997 and order of sentence dated 09.01.1997 in Sessions Case No. 36 of 02.07.1994, by the Additional Sessions Judge, Roper, in respect of F.I.R. No. 34 dated 17.02.1994 u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) registered at Police Station Kara vide which Lekberg Singh Appellant was sentenced to undergo rigorous imprisonment for 15 years and to pay a fine of Rs. 1,00,000, in default of payment of fine ; to further undergo rigorous imprisonment for two years.

Brief facts of the case are that on 17.02.1994 Inspector Pritam. Singh P.W. 3 along with A.S.I. German Singh, P.W. 2, A.S.I. Balkan Singh and other police officials was going towards village Bata in connection with patrol duty. When the police party reached near the Government Water Tank located on the road, Lekberg Singh was found going with a bullock cart loaded with bags. Those bags were covered with a Tarpaulin. On seeing the police party the accused felt perplexed. On suspicion the bullock cart was intercepted. In the meantime Aimer Singh P.W. 1. Son of Baste Singh, resident of village Harlan came there by chance. Aimer Singh was also joined with the police party. D.S.P. Harminderpal Singh also reached there along with his Gunman in a Gypsy and joined the police party. On enquiry, the accused disclosed his name, address and parentage. The cart was found carrying 35 bags Ex. PI to P35 containing poppy husk. 250 Gms of poppy husk was taken out as sample from each of the bags. The remaining poppy husk along with each bag on eighteenth was found to be 37.500 kegs. The samples and the remaining bulk of poppy husk contained in the bags were sealed separately with the seal bearing impression P.S. and the seal of H.P.S. of Harminderpal Singh D.S.P. The seals after use were handed over to A.S.I. German Singh. The accused could not produce any permit or license for possession of poppy husk. Bags Ex. PI to P35 was taken into possession vide memo Ex.P.A. Attested by Aimer Singh, A.S.I. German Singh and D.S.P. Harminderpal Singh. The grounds of arrest were recorded in Ex. P.B. The cart, the tarpaulin and the pair of bullocks were taken into possession vide memo Ex. P.D. On personal search of the accused, a wrist watch was recovered which was taken into possession vide recovery memo Ex. P.C. Rona Ex. P.E. was sent to Police Station Kara on the basis of which formal F.I.R. Ex. P.E/I was recorded by M.H.C. Bawl Singh. Rough site plan Ex. P.F. with correct marginal notes was prepared. On return to the police station, case property was deposited with the MHC Bawd Singh with seals intact and the accused was lodged in the police lock up. On the next day, inspector Preterm Singh made application. Ex. P.G. for production of the accused and the case property before the Illegal Magistrate. Under the orders of the Illaqa Magistrate, case property was kept in the Milkman vide his endorsement Ex. PG/1. The parcels containing samples were sent to the Chemical Examiner for analysis. The Chemical Examiner after analysis declared the contents of the samples to be coarse powder poppy husk vide his report Ex.P.H. After completion of usual investigation; challan was presented.

Charge u/s 15 of the Act was framed against the Appellant to which he pleaded not guilty and claimed trial.

In support of its case, prosecution examined Aimer Singh P.W. 1, A.S.I. Gurnam Singh P.W. 2, Inspector Pritam Singh P.W. 3 and D.S.P. Harminder Pal Singh P.W. 4.

When examined u/s 313, Code of Criminal Procedure Lakhbir Singh pleaded his innocence and false implication. He took up the stand that he was taken into custody by the Police a week before the alleged recovery. The Kharar Police had recovered a truck loaded with poppy husk from one Sucha Singh of village Barass which belonged to some man of U. P. He further pleaded that the real culprits were let off and the poppy husk was planted on him.

In his defense, he examined constable Madam Lai D.W. 1, Surmukh Singh D.W. 2 and constable Santo Lai D.W. 3. The evidence led by Lakhbir Singh in his defense did not find favor with the trial court. The trial court found that the prosecution has fully established its case. Believing the evidence led by the prosecution, the trial court convicted and sentenced Lakhbir Singh, as indicated in the earlier part of the judgment.

We have heard the learned Counsel for the Appellant, learned State Counsel and have perused the evidence brought on record.

It was argued by the learned Counsel for the Appellant that the punishment for the offence provided under the Act is very severe, stringent and deterrent. Therefore, the Legislature in its wisdom has taken care of and incorporated certain safeguards in the matter of arrest, search and seizure so that innocent persons are not harassed ; these provisions are mandatory in nature had non-compliance thereof would vitiate the trial. It was further argued that Aimer Singh P.W. 1, the so-called independent witness did not opt to support the case of the prosecution. It was also argued that the seals after use were not handed over to an independent witness. Therefore, the chances of tampering with the samples cannot be ruled out. According to the learned Counsel, the affidavits tendered in evidence as link evidence were not put to the accused in his statement u/s 313, Code of Criminal Procedure. Therefore, that piece of evidence deserves to be left out of consideration. In support of his arguments, he relied upon Mohandas Kumar v. State of Punjab, GAO 1995 (2) EFR 342 (SC).

On the other hand, it was argued by the learned State counsel that where there is a chance recovery, the provisions of Section 50 do not come into play. Therefore, noncompliance of the mandatory provisions does not affect the prosecution case. According to the learned State counsel, the Appellant was well aware of the facts and Circumstances of the case and the evidence led against him were quite in his knowledge. If the link evidence was not put to him in his statement u/s 313, Code of Criminal Procedure no prejudice is shown to have been caused to the Appellant. Therefore, that does not in any way affect the prosecution case. In so arguing, the learned State counsel has made all efforts to support the conclusions arrived at by the trial court. In support of his arguments, he relied upon State of Punjab v. Blair Singh 1994 (1) EFR 516 (SC) and Dali Singh v. State of Punjab 1997 (4) RCR 818.

We have considered the rival contentions of the learned Counsel for the parties.

Provisions of Section 50 of the Act were considered exhaustively by the Apex Court in a well-known judgment rendered in State of Punjab v. Balbir Singh 1994 (I) EFR 516 (SC) and laid down as under:

If a police officer without any prior information as contemplated under the provisions of N.D.P.S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of N.D.P.S. Act would not be attracted and the question of complying with the requirements there under would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the N.D.P.S. Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the provisions of the N.D.P.S. Act.

While considering the case of Mohandas Kumar, their lordships reiterated the law laid down in Balbir Singh''s case (supra), which reads as under:

After analyzing the provisions of the Act, this Court has stated that if a police officer, without prior information, makes a search and effects arrest of persons and if during such search he stumbles on a chance recovery of any narcotic drugs or psychotropic substance and if he happens to be a police officer who is not empowered under the Act to effect search and seizure he should inform the empowered officer as required by the Act. If he himself happens to be the empowered officer, then from that stage onwards the investigation must be carried out in accordance with the provisions of the Act.

The facts in Mohandas Kumar''s case were that Assistant Sub-Inspector noticed two persons sitting in the verandah of the house and as soon as they saw him and the police party, they hurriedly entered the house. This aroused the suspicion of the Sub-Inspector whereupon he and the police party went to the house and directed the two persons to stay where they were and asked the Head Constable to alert the others and to arrange for Pinches. On the arrival of the Pinches he and his companions entered the house and questioned the accused persons. He saw a white plastic bag lying by the side of the accused Mohandas Kumar. On search, he found that the bag contained two polythene packets of chakras like substance. Both the packets were attached, weighed and samples weighing about 50 gms. Were taken there from and sealed. The person of the accused was searched and two pieces of chakras from the right pocket of his pants were recovered weighing about 10 Gms. and samples there from were also taken. Further recovery was affected from the adjoining room where a shoulder bag was found containing chakras weighing 1.65 kegs. From the said find also, samples were taken and were later on sent to the Public Analyst. The rest of the chakras was separately packed and sealed.

Dealing with the merits of Mohinder Kumar''s case, their Lordships of the Supreme Court in Para 3 of the judgment observed as under:

In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and affected the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for the punches and on their arrival drew up the Kanchanalak. In the circumstances, from the stage he had reason to believe that the accused persons were in custody and narcotic drugs and sent for punches, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act.

From the law laid down by the Apex Court in the above referred two cases, it can easily be deduced that if a person is arrested, search is effected and some narcotic drug or psychotropic substance is recovered and seized by an empowered officer without prior information or during such search he purely accidentally stumbles on a chance recovery of any narcotic drug or psychotropic substance, in that situation, it would be a chance recovery and the provisions of Section 50 of the N.D.P.S. Act would not be attracted. The view we have taken is supported by the decision in Dalip Singh''s case (supra). In Dalip Singh''s case, the facts were that on 02.08.1991 D.S.P. Sandal Singh along with S.I. Kuwait Singh and other companions were on patrolling. After checking the vehicles at Handily Chow, they reached the revenue limits of village Ghana''s where they met H.C. BAL winder Singh along with Para-Military Force who had just then detained Truck No. PBD-2159. Dalip Singh Appellant was at the steering wheel and Appellant Mohandas Singh was sitting behind him in the driver''s cabin. After disclosing his designation, D.S.P. Carpool Singh conducted the search of the truck which was found to contain 79 bags of poppy husk. Each bag weighed about 40 kegs. Two samples of 250 Gms. each were taken out of each bag separately. The sample parcels and the gunny bags containing the remaining contents were sealed with the seal bearing impression ''SS''. Specimen of the seal was prepared. The sample parcels and the gunny bags were duly sealed and the said truck was seized vide memo Ex. P.H. Personal search of both the Appellants was taken vide memo Exhibits PJ and PK. Rosa Ex. PD was sent to the Police Station, Tape at 3.15 a.m. on 3.8.1991 through H.C. Bal winder Singh, on the basis of which formal F.I.R. was recorded. In this situation, the Division Bench of this Court held that it was a chance recovery and as such provisions of Section 50 of the N.D.P.S. Act were not attracted. If the Police Officer who is not empowered to effect search and seizure, he should inform the empowered officer as required by the said Act and in that event, the provisions of Section 50 would certainly come into play.

We are of the considered view that if an empowered Police Officer, from the conduct of a person, entertains a suspicion that he might be carrying some narcotic drug or psychotropic substance and that suspicion leads to search and seizure of some narcotic drug or psychotropic substance in that event, from the moment he entertains such suspicion from that stage he is mandatory bound to follow the provisions of Section 50 of the N.D.P.S. Act. If empowered police officer fails to comply with the mandatory Provisions of the N.D.P.S. Act, the accused is entitled to be acquitted.

In the present case, police party headed by Inspector Pritam Singh P.W. 3 while on patrol duty came across the Appellant who was found going with a bullock cart loaded with bags covered by tarpaulin. On seeing the police party, he got perplexed. On suspicion, the bullock cart was intercepted. The accused disclosed his name, address and parentage. The cart was found carrying 35 bags of poppy husk Ex. PI to P35 which were taken into possession vide memo Ex. P.A. attested by Aimer Singh, A.S.I., Guam Singh and D.S.P. Harminder Pal Singh. Sample of 250 Gms. of poppy husk was taken out from each bag. The remaining poppy husk with each bag on regiment was found to be 37.500 kegs. These were sealed separately with the seal of Inspector Pritam Singh bearing impression P.S. and the seal of H.P.S. of Harminder pal Singh D.S.P. Rosa Ex. PE was sent to the Police Station on the basis of which formal F.I.R. Ex. PE/1 was recorded by M.H.C. Bawl Singh. Other formalities were also completed. On return to the Police Station, case property was deposited with M.H.C. Bawl Singh with seals intact. In the facts and circumstances of the case in hand, the contentions raised by the learned Deputy Advocate General lose their force. Inspector Pritam Singh P.W. 3 is the Investigating Officer. It was stated by him that when the police party headed by him reached near the Government Water Tank, the accused was found traveling in bullock cart on which bags were loaded. Those were covered by a tarpaulin. The cart was intercepted. In the meantime, Ajmer Singh P.W. 1 reached there. He was also joined with the police party. Harminderpal Singh D.S.P. along with his gunman also reached there in a Gypsy. He also joined the police party. On enquiry, accused disclosed his name, parentage and address. The bags were found to be 35 in number. Those bags were containing poppy husk 250 Gms. of poppy husk from each bag was taken out as sample. Each bag contained 37.500 kegs. Of poppy husk including the weight of the bag. Samples and the bags were separately sealed and were taken into police possession sealed with the seal of Pritam Singh Inspector bearing impression PS and that of Harminderpal Singh D.S.P. bearing impression HPS. The samples and the bulk were taken into police possession vide memo Ex. PA attested by Ajmer Singh and A.S.I. Guam Singh. He further stated that grounds of arrest were disclosed to the accused and memo Ex. PB to that effect was prepared. A perusal of memo Ex. PB would show that it was signed by Lakhbir Singh alias Baby accused, attested by Harminderpal Singh D.S.P., Inspector Pritam Singh, A.S.I. Gurnam Singh and Ajmer Singh P.W. It was also recorded in the memo Ex. PB that in the presence of witnesses, grounds of arrest were disclosed to Lakhbir Singh that he was keeping 35 bags of poppy husk without any permit. It clearly indicates that Inspector Pritam Singh P.W. 3 from the conduct of the accused and surrounding circumstances had entertained the suspicion in his mind that Lakhbir Singh was carrying 35 bags of poppy husk powder which was an offence under the N.D.P.S. Act. If Inspector Pritam Singh P.W. 3 had entertained the suspicion that accused might be carrying narcotic drugs or psychotropic substance, from that stage he was required to comply with the mandatory provisions of Section 50 of the N.D.P.S. Act but nothing was stated by him while appearing as P.W. 3 that any step in that direction was taken by him. No doubt, in the cross-examination, it was stated by him that he had asked the accused as to whether he wanted his search to be conducted in the presence of some Magistrate or a Gazette Officer but he declined. At the same time, it was admitted by him that he did not mention this fact in the rural or in the recovery memo or in any other document prepared by him at the spot. A.S.I. Gurnam Singh P.W. 2 in his cross-examination stated that Inspector Pritam Singh had asked the accused if he wanted to be taken before a Magistrate or a Gazette Officer for the purpose of search but the accused stated that D.S.P. Sahib was present and the bags may be searched In his presence. At the same time, it was admitted by him in his statement recorded u/s 161, Code of Criminal Procedure that this fact was not mentioned either in the rural Ex. P.E. or any other document. It was further admitted by him that no separate statement of the accused was recorded when he declined to be taken before the Magistrate or a Gazette Officer. Harminderpal Singh D.S.P. was examined as P.W. 4. In his examination-in-chief, it was stated by him that he told the accused regarding his position and asked him if he wanted to get himself searched from him. According to P.W. 4, Lakhbir Singh told him that he had full confidence in him and he could go ahead with the search. However, in cross-examination, it was admitted by him that he did not prepare any memo nor Inspector Pritam Singh had prepared any memo to the .effect that they had asked the accused to get his search conducted either through D.S.P. or a . Magistrate. Evidence of A.S.I. Gurnam Singh, Inspector Pritam Singh and Harminder pal Singh D.S.P. Paws. 2, 3 and 4 respectively goes to show that they had entertained the suspicion in their mind that the accused was carrying 35 bags of poppy husk in cart driven by him. There Is absolutely no evidence to show that the accused was given an option to be searched before a Gazette Officer or a Magistrate and that he had given his consent that the search of the bags may be conducted by the police official(s). In the absence of any evidence to that effect, it is difficult to hold that there was compliance of mandatory provisions of Section 50 of the N.D.P.S. Act. Therefore, we have no hesitation to hold that there was absolutely no compliance of the mandatory provisions of Section 50 of the N.D.P.S. Act.

In view of the above discussion, we need not consider the other contentions raised by both sides.

For the reasons recorded above, this appeal is allowed, the Impugned judgment of conviction and order of sentence are set aside and the Appellant is ordered to be set at liberty forthwith