Lakhbir Singh vs State of Punjab

B. Rai, J.—This appeal has been directed against the judgment of conviction dated 4-1-1997 and order of sentence dated 9-1-1997 in Sessions Case No. 36 of 2-7-1994, by the Additional Sessions Judge, Ropar, in respect of F.I.R. No. 34 dated 17-2-1994 u/s 15 of the Narcotic Drugs and Psychotropic Substances Act, 1095 (for short ''the Act'') registered at Police Station Kharar vide which Lakhbir 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 17-2-1994 Inspector Pritam Singh P.W. 3 along with A.S.I. Gurnam Singh, PW 2, ASI Balkar Singh and other police officials was going towards village Batta in connection with patrol duty. When the police party reached near the Government Water Tank located on the road, Lakhbir 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 Ajmer Singh PW 1 son of Basta Singh resident of village Gharuan came there by chance. Ajmer 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 Exs. P1 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 weighment was found to be 37.500 Kgs. The samples and the remaining bulk of poppy husk contained in the bags were sealed separately with the seal bearing impression PS and the seal of HPS of Harminderpal Singh D.S.P. The seals after use were handed over to A.S.I. Gurnam Singh. The accused could not produce any permit or licence for possession of poppy husk. Bags Exs. P1 to P35 were taken into possession vide memo Ex. P.A. attested by Ajmer Singh, A.S.I. Gurnam Singh and D.S.P. Harminderpal Singh. The grounds of arrest were recorded in Ex. PB. The cart, the tarpaulin and the pair of bullocks were taken into possession vide memo Ex. PD. On personal search of the accused, a wrist watch was recovered which was taken into possession vide recovery memo Ex. PC. Ruda Ex. P.E. was sent to Police Station, Kharar on the basis of which formal FIR Ex. P.E./I was recorded by MHC Bawa 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 Bawa Singh with seals intact and the accused was lodged in the police lock-up. On the next day, Inspector Pritam Singh made application Ex. P.G. for production of the accused and the case property before the Ilaqa Magistrate. Under the orders of the Ilaqa Magistrate, case property was kept in the Malkhana 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. PH. 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 Ajmer Singh PW 1, ASI Gurnam Singh PW 2, Inspector Pritam Singh PW 3 and D.S.P. Harminderpal Singh PW 4.

When examined u/s 313, Cr.P.C. 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 defence he examined Constable Madan Lal DW 1, Surmukh Singh DW 2 and Constable Santokh Lal DW 3. The evidence led by Lakhbir Singh in his defence did not find favour 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 and non-compliance thereof would vitiate the trial. It was further argued that Ajmer Singh PW 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, Cr.P.C. Therefore, that piece of evidence deserves to be left out of consideration. In support of his arguments, he relied upon Mohinder Kumar Vs. The State, Panaji, Goa,

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, non-compliance 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 was quite in his knowledge. If the link evidence was not put to him in his statement u/s 313, Cr.P.C. 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 Vs. Balbir Singh, and Dalip Singh v. State of Punjab (1997) 4 RCR (Cri) 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 Vs. Balbir Singh, and laid down as under (at p. 2718 of Cri LJ) :-

"If a Police Officer without any prior information as contemplated under the provisions of NDPS Act makes a search or arrest a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of NDPS Act would not be attracted and the question of complying with the requirements thereunder 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 NDPS 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 NDPS Act."

While considering the case of Mohinder Kumar Vs. The State, Panaji, Goa, Their Lordships reiterated the law laid down in State of Punjab Vs. Balbir Singh, which reads as under :

"After analysing the provisions of the Act, this Court has stated that if a Police Officer, without prior information, makes a search and effect 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 Mohinder Kumar Vs. The State, Panaji, Goa, 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 Panchas. On the arrival of the Panchas 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 Mohinder Kumar. On search, he found that the bag contained two polythene packets of Charas like substance. Both the packets were attached, weighed and sample weighing about 50 gms. were taken there from and sealed. The person of the accused was searched and two pieces of Charas from the right pocket of his pant were recovered weighing about 10 gms. and samples therefrom were also taken. Further recovery was effected from the adjoining room where a shoulder bag was found containing Charas weighing 1.65 Kgs. From the said find also, samples were taken and were later on sent to the Public Analyst. The rest of the Charas was separately packed and sealed.

Dealing with the merits of Mohinder Kumar Vs. The State, Panaji, Goa, 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 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 effected 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 persons, on coming to know about the accused persons being in custody of the offending articles, he sent for the panchas and on their arrival drew up the Panchanama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody and narcotic drugs and sent for panchas, 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 abovereferred to 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 NDPS 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 2-8-1991 D.S.P. Sardul Singh along with SI Kulwant Singh and other companions was on patrolling. After checking the vehicles at Handiaya Chowk, they reached the revenue limits of village Ghunas where they met HC Balwinder Singh along with Para-Military Force who had just then detained Truck No. PBD-2159. Dalip Singh appellant was at the steering wheel and the appellant Mohinder Singh was sitting behind him in the driver''s cabin. After disclosing his designation, DSP Sardool Singh conducted the search of the truck which was found to contain 79 bags of poppy husk. Each bag weighed about 40 Kgs. 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. PH. Personal search of both the appellants was taken vide memo Exhibits PJ and PK. Ruqa Exhibit PD was sent to the Police Station, Tapa at 3.15 a.m. on 3-8-1991 through HC Balwinder Singh, on the basis of which formal FIR 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 NDPS 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 mandatorily bound to follow the provisions of Section 50 of the NDPS Act. If empowered police officer fails to comply with the mandatory provisions of the NDPS Act, the accused is entitled to be acquitted.

In the present case police party headed by Inspector Pritam Singh PW 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 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 Exs. P1 to P35 which were taken into possession vide memo Ex P.A. attested by Ajmer Singh, A.S.I. Gurnam Singh and D.S.P. Harminderpal Singh. Sample of 250 gms of poppy husk was taken out from each beg. The remaining poppy husk with each bag on weighment was found to be 37.500 Kgs. These were sealed separately with the seal of Inspector Pritam Singh bearing impression PS and the seal of HPS''s of Harminderpal Singh D.S.P. Ruqa Ex. PE was sent to the Police Station on the basis of which formal F.I.R. Exh. PE/1 was recorded by MHC Bawa Singh. Other formalities were also completed. On return to the police station, case property was deposited with MHC Bawa Singh with seals intact. In the facts and circumstances of the case in hand, the contentions raised by the learned Deputy Advocate General loose their force. Inspector Pritam Singh PW 3 is the Investigating Officer. It was stated by him that when the police party headed by him reached near the Govt. Water Tank, the accused was found travelling in bullock cart on which bags were loaded. Those were covered by a tarpaulin. The cart was intercepted. In the meantime, Ajmer Singh PW 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 Kgs of poppy husk including the weight of the bag. Sample 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 Exh. PA attested by Ajmer Singh and ASI Gurnam Singh. He further stated that grounds of arrest were disclosed to the accused and memo Exh. PB to that effect was prepared. A perusal of memo Exh. PB would show that it was signed by Lakhbir Singh alias Babi accused attested by Harminderpal Singh D.S.P., Inspector Pritam Singh, ASI Gurnam Singh and Ajmer Singh PW. It was also recorded in the memo Exh. 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 PW 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 NDPS Act. If Inspector Pritam Singh PW 3 had entertained the suspicion that accused might be carrying narcotic drug or psychotropic substance, from that stage, he was required to comply with the mandatory provisions of Section 50 of the NDPS Act but nothing was stated by him while appearing as PW 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 Gazetted Officer but he declined. At the same time, it was admitted by him that he did not mention this fact in the ruqa or in the recovery memo or in any other document prepared by him at the spot. ASI Gurnam Singh PW 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 Gazetted Officer for the purpose of search but the accused stated that DSP 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, Cr.P.C. that this fact was not mentioned either in the ruqa EX. PE 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 Gazetted Officer. Harminderpal Singh D.S.P. was examined as PW 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 PW 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 ASI Gurnam Singh, Inspector Pritam Singh and Harminderpal Singh D.S.P. PWs 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 a cart driven by him. There is absolutely no evidence to show that the accused was given an option to be searched before a Gazetted 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 NDPS Act. Therefore, we have no hesitation to hold that there was absolutely no compliance of the mandatory provisions of Section 50 of the NDPS 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.

Appeal allowed.