Mehboob Khan vs State (U.T.Administration)

R.L. Anand, J.

This is a criminal appeal and had been directed against the judgment and order dated 24.2.1997, passed by the court of Addl. Sessions Judge, Chandigarh, who convicted the appellant u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine, the appellants was directed to undergo R.I. for two years.

The brief facts of the case can be summarised in the following manner :

On 25.1.1995, a police party headed by S.I. Sukhdev Singh, in which ASI Karnail Singh, Constables Dalbir Singh, Jai Krishan and Kulbir Singh, were also associated, was present near Rana Flour Mills in the area of Dadu Majra, in connection with patrolling, when a secret information was received by the S.I. Sukhdev Singh to the effect that the appellant who was a resident of Village Palsora was smuggler in opium and he will be coming to sell opium in Village Dadu Majra at about 10 p.m. on the same day and in case nakabandi was held, he could be arrested. One Jaswinder Singh son of Ranjit Singh, resident of Mohali, happened to reach there and he was also associated in the police party and the secret information was shared by the S.I. with him. The naka was held and at about 10 p.m. the appellant was seen coming from the side of Chandigarh. On seeing the police party, the appellant tried to give a slip but he was apprehended on the basis of suspicion. The I.O. told to the accused that he wanted to take his search and whether the accused wanted to give the search in the presence of some Magistrate or a gazetted officer. The appellant stated that he wanted to give the search in the presence of a gazetted officer. Resultantly, the I.O. sent a wireless message to D.S.P. (South), Shri Baldev Singh, who came at the spot within a few minutes. The DSP directed the ASI to conduct the personal search of the appellant and from his right pocket of the coat worn by the appellant, opium wrapped in a glazed paper was recovered. On weighing it came to 520 grams. S.I. separated 20 grams of opium and made a sealed parcel thereof and the remaining opium was separately sealed. Both the sealed parcels were sealed with the seal of the I.O. and were taken into possession vide recovery memo, Ex. PF, attested by ASI Karnail Singh and DSP Baldev Singh. Specimen impression of the seal used was also prepared. Appellant could not produce any licence or permit for the possession of opium. Resultantly, ruqa, Ex. PA, was sent to the police station for the registration of the case, on the basis of which formal FIR, Ex. PH/1, was recorded. The I.O. prepared the rough site plan, Ex. PJ, of the place of recovery and recorded the statements of the witnesses. On return to the police station, the accused along with the case property was produced before the SHO, who resealed the case property with his own seal bearing inscription PS. The sample of opium was sent to the office of Director, Forensic Science Laboratory, who vide report, Ex. PL, found the contents as opium and the morphine percentage was found to be 2.86%.

On the completion of the investigation of the case, the appellant was challaned in the court of the Area Magistrate, who supplied the copies of the documents free of cost as required under the law and vide order dated 16.5.1995 committed the accused to court of sessions to face trial u/s 18 of the Act.

Vide order dated 8.6.1995, the learned trial court framed a specific charge u/s 18 of the Act on the allegations that on 25.1.1995 at about 10 p.m. in the area near Rana Flour Mills at Dadu Majra Colony, Chandigarh, he was found in possession of 520 grams of opium without any licence or permit and thereby committed an offence punishable u/s 18 of the Act. The charge was read over and explained to the accused, who pleaded not guilty and claimed a trial.

In order to substantiate the charge, the prosecution examined as many as 10 witnesses including the I.O. and the D.S.P. Jaswinder Singh, independent witness was also examined.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the appellant. The appellant denied those circumstances and stated as follows :

"I was in illegal custody of the police much prior to the present alleged incident in some suspected theft cases and have been falsely roped in this case. I am innocent."

When called upon to enter into defence, the accused did not lead any evidence.

The learned trial court relied the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and order of sentence, the present appeal, which I am disposing of with the assistance rendered by Shri Shammi Khan, Advocate, on behalf of the appellant and Shri R.S. Rai, Advocate, appearing on behalf of the U.T., Chandigarh, and with their assistance have gone through the record of this case.

After going through the record of this case, I am of the considered opinion that some irreparable and incurable lapse has still crept in the investigation of this case, irrespective of the fact that the I.O. associated an independent witness and also sought the assistance of DSP Baldev Singh, before taking the search of the appellant. The counsel for the appellant submitted that section 50 of the Act in this case has not been complied with in the spirit in which it was supposed to be complied with. Unfolding his submission, Mr. Shammi Khan submitted that though it is the case of the prosecution that the I.O. enquired from the appellant about his option as to whether he wanted to give the search in the presence of a gazetted officer or Magistrate, but no statement of the appellant has been recorded to that effect. The counsel for the appellant has even gone to the extent by saying that there is no proof to the effect that any notice either oral or written was given to the appellant so as to enquire his option about being searched in the presence of the gazetted officer or a Magistrate.

On the contrary, the learned counsel for U.T., Chandigarh, submitted that the intention of section 50 of the Act was to protect the interest of a person to be searched. In the present case, the offer was given to the appellant, who opted that he wanted to give the search in the presence of a gazetted police officer. Accordingly, the services of D.S.P. Baldev Singh were requisitioned. He has been examined and he has corroborated the allegations of the prosecution and, in these circumstances, no prejudice has been caused to the appellant if his statement u/s 50 of the Act has not been recorded. Mr. Rai further submitted that a close reading of section 50 of the Act shows that it does not enjoin any duty upon the I.O. that he should give a notice, oral or in writing, to the person to be searched as no proforma has been prescribed in the Act. Equally, there is no obligation on the part of the I.O. to record the statement of the person to be searched regarding his option whether he wanted to give the search in the presence of a gazetted officer or a Magistrate. The counsel submitted that a huge recovery of 520 grams of opium has been effected from the appellant in the presence of a gazetted officer and, in these circumstances, the conviction and sentence of the appellant should be maintained.

The counsel for the respondent has also invited my attention to the judgment of the Hon''ble Supreme Court in Raghbir Singh v. State of Haryana, 1991(1) RCR 573, wherein in para11, it was held as follows :

"11. The option under Section 50 of the Act is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word "nearest" in Section 50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer of Magistrate."

Mr. Rai also submitted that, ultimately, the option lies with the I.O. to call either a gazetted officer or a Magistrate before taking the search of the person, therefore, the case of the prosecution should not be thrown into wind on some technicalities here or there that the statement of the person has not been recorded in writing.

I have considered the submissions raised by both the parties, but I am still of the view that the prosecution in this case has not been able to prove the charge beyond any reasonable doubt. There is a snag in the investigation, which has not been bridged by the arguments raised by the counsel for the respondent. A reading of section 50 of the Act would show that this section has been introduced, for the benefit of the person to be searched. The moment the I.O. conceives a reasonable ground to believe that a person is in possession of some narcotic drug, 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. A reading of the above provision would show that a duty has been cast upon the I.O. to appraise the person of his right u/s 50 of the Act. I agree with the submission of Mr. Rai that no proforma has been set out in the Act laying down a duty upon the I.O. to serve a notice in a particular manner, but the law courts always expect and want to keep a check on the mode of investigation conducted by the I.O. If before the I.O., the accused has opted to be searched in a particular manner, the law courts would always insist that such a statement should be in writing. Neither the I.O. nor the D.S.P. have cared to record the statement of the accused. We are still in dark whether at all the so called statement made by the appellant was his statement or not. There is no counter check with the court to scrutinise the testimony of the I.O., D.S.P. and independent witness. Even in Raghbir Singh''s case (supra), the Hon''ble Supreme Court has used the words with a purpose in para11 that "search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer or Magistrate."

I am laying stress upon the words "once the person to be searched opts to be searched". Where is that option on the part of the accused is a very vital link, which is missing in the present case. Once I have held that a vital link is missing, the benefit of doubt has to be given to the appellant.

Resultantly, I allow this appeal, set aside the judgment and order of the trial Court and acquit the appellant of the charge framed against him. The case property stands confiscated to the State and shall be destroyed according to law. Let intimation about the acceptance of this appeal be sent to the Superintendent, Central Jail, Ajmer, so that the appellant may be released forthwith, if not wanted or convicted in any other case.