Mukhtiar Singh vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Mukhtiar Singh (hereinafter described as the appellant) directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Hissar dated 14.11.1994 and 16.11.1994 respectively. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as ''the Act''). By the subsequent order, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for two years.

The relevant facts can briefly be delineated. On 10.2.1993 ASI Partap Singh alongwith HC Gurmit Singh and Constables Tej Pal and Raj Pal were present on the road between Bhuna and Ratia. It is near village Mohammadpur Sottar. The appellant was seen coming on a Vicky (moped) from the side of village Mohammadpur Sottar. On seeing the police party, the appellant stopped his vehicle and made an attempt to turn back. On suspicion he was stopped. He was given a notice suspecting him to be in possession of some intoxicant. The appellant was informed that if he likes his person and that the search of the moped can be effected in presence of a Gazetted Officer or a Magistrate. The appellant opted that his person may be searched before Gazetted Officer or a Magistrate.

The appellant was produced alongwith the vehicle before Sh. Prem Kumar, Naib Tehsildar, Bhuna. The search was conducted from the tool cavity of the moped. The opium was recovered. The contents were weighed and found to be 1 1/2 Kg. 100 gms. was taken as the sample. The sample and rest of the opium were converted into two separate parcels and were sealed with the seal of ''PS''. Both the packets were taken into possession vide a recovery memo. The seal after use was handed over to HC Gurmit Singh.

Ruqa was sent to the police station on the basis of which formal first information report was recorded. Officerincharge of the police station reached the place. The appellant was produced before him. After verifying the fact, he affixed his seal of ''SP'' on the packets. The case property was deposited in the Malkhana. Later the respective sample was sent to the Chemical Examiner. On receipt of the report that contents were opium, report under Section 173 Cr.P.C. was filed.

On 17.1.1994 a charge was framed against the appellant for the offence punishable under Section 18 of the Act. The appellant pleaded not guilty and claimed trial. The prosecution examined seven witnesses and thereafter the statement of the appellant was recorded in terms of Section 313 Cr.P.C. The appellant denied recovery of opium from his person. He alleged that he has falsely been implicated. He was called by the police from his house and falsely implicated in the presence of Sarpanch Hardip Singh.

In defence the appellant examined Hardip Singh DW1, Sarpanch of the village. He deposed that the appellant at the relevant time did not have any vehicle. The appellant was arrested from a place near his fields. The appellant was taken to the police station and this witness was informed that he would be allowed to go after some time.

The learned trial court on appraisal of evidence held that there has been strict compliance of the provisions of Section 50 of the Act and further that it has been established beyond all reasonable doubt that opium was recovered from the person of the appellant. With these findings, the impugned judgment and the order of sentence were passed.

Aggrieved by the same, the present appeal has been filed.

The main argument advanced was that provisions of subsection (1) of Section 50 of the Act have not been complied with. The said provision reads :

"50(1). When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, 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".

The language of subsection (1) of Section 50 of the Act leaves no doubt that the accused who is to be searched has a right to insist that search be effected in the presence of a Gazetted Officer or the nearest Magistrate. It is a valuable right with the person when search is to be effected. The Supreme Court in the case of State of Punjab v. Balbir Singh held authoritatively that provisions of Section 50(1) of the Act are mandatory. (See State of Punjab v. Balbir Singh, JT 1994(2) SC 108). In paragraph 27 subpara 5 the Supreme Court concluded :

"On prior information, the empowered officer or authorised officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to noncompliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact".

When such is the valuable right of the person concerned, then it cannot be taken lightly. When such a right is exercised the Investigating Officer who had given the option must adhere to the right so exercised by the appellant. In other words, if the concerned person seeks that search be effected before a Gazetted Officer, he should be taken before one such officer. At the same time if the insistence is for a Magistrate, then he should not be taken before the Gazetted Officer. If any other is taken then there will be no significance of the right that is exercised by the accused.

In this regard the evidence of the prosecution can be looked into. HC Gurmit Singh PW5 is the first witness of the recovery and at the time when option is alleged to have been given to the appellant as contemplated under subsection (1) of Section 50 of the Act. With respect to the said fact he stated in his own words :

"Partap Singh ASI gave a writing, a notice, Ex. PF to the accused. He suspected the accused to be having some intoxicant. The accused was given option to be searched before some Gazetted Officer. The accused opted for his search before Gazetted Officer".

ASI Partap Singh appeared as PW6 and his version reads :

"Before he could speed away, his moped was caught from behind. I suspected him to be having some intoxicant. I gave him notice Ex. PF giving him the option to be taken before some Gazetted Officer. He opted for his search before the Gazetted Officer. His statement Ex. PG was recorded. Ex.PF and Ex.PG was signed by him and were attested by the witnesses. I then took him to the office of Executive Magistrate, Bhuna".

The said evidence shows that option was given to the appellant and he exercised in terms that he may be taken before a Gazetted Officer. This is the prosecution case. In fact he was taken before Sh. Prem Kumar, Naib Tehsildar, PW4. It was conceded before the learned trial court that Prem Kumar is not a Gazetted Officer. The learned State counsel also did not bring any other gazette notification to show that he is a Gazetted Officer. The learned trial court proceeded on the premise that Prem Kumar was an Executive Magistrate and, therefore, it was compliance of subsection (1) of Section 50 of the Act. Reasons have already been recorded above. The search in presence of Prem Kumar will not be compliance of the option exercised by the appellant. Sh. Prem Kumar was not a Gazetted Officer. It is not even alleged that Gazetted Officer was not available. The search in presence of a person other than opted for by the appellant will not be valid. A valuable right was lost to the appellant resulting in prejudice. On this short ground, therefore, when the search is not in accordance with the provisions of the Act, the judgment and the order of sentence cannot be sustained.

For these reasons by setting aside the judgment and the order of sentence passed by the learned trial court, the appeal is accepted. The appellant is acquitted. He be set at liberty if not required in any other case.