Om Parkash vs State of Punjab

V. S. Aggarwal, J.

This is an appeal filed (through Superintendent of Jail) by Om Parkash (hereinafter described as ''the appellant''). It is directed against the judgment and the order of sentence passed by the learned Sessions Judge, Gurdaspur dated 3.3.1994. 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 and Psychotropic Substance Act, 1985 (hereinafter described as ''the Act''). By the subsequent order of sentence of the same date, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. one lac. In default of payment of fine, the appellant was to undergo further rigorous imprisonment for one year.

The relevant facts are that on 17.10.1992 Sub Inspector Ram Nath was posted at police station city, Pathankot. On the said date accompanied by Head Constable Pritam Lal and other police officials he was going to Mamoon Chowk. They were at a short distance from Mamoon Chowk, when the accused was seen coming from the opposite side. On seeing the police party, he tried to slip away but was apprehended.

The appellant was informed that if he likes his person can be searched by him or before a Gazetted Officer. The appellant allowed Sub Inspector Ram Nath to conduct the personal search. The person of the appellant was searched. Opium wrapped in a glazed paper was recovered from the right pocket of the pant of the appellant. It was found to be 100 grams. 10 gms. was separated as the sample. The sample and rest of the opium were converted into two separate parcels and sealed with the seal of ''RN''. The seal after use was handed over to Head Constable Pritam Lal. The sample and the remaining opium in the tin were taken into possession vide a recovery memo which was signed by all the witnesses including Head Constable Pritam Lal and Constable Surjit Singh. Ruqa was sent to the police station on the basis of which formal first information report was recorded by Sub Inspector Samund Singh. Sub Inspector Ram Nath prepared the rough site plan and arrested the appellant. On return to the police station, the case property was deposited in the Malkhana. Subsequently, the sample was got sent for chemical analysis. It was reported to be opium. On basis of these facts, the challan as against the appellant was presented.

The learned trial court framed a charge against the appellant with respect to the offence punishable under Section 18 of the Act. The appellant pleaded not guilty and claimed trial. In support of its case the prosecution examined HC Pritam Lal (PW1) and SI Ram Nath (PW2). Besides that the affidavit of MHC Ranjit Singh and Constable Bishamber Dass were tendered alongwith the report of chemical examiner. The appellant was examined and prosecution evidence was put to him in the form of different questions. He denied the recovery of opium from his person and that he has falsely been implicated.

The learned trial court on appraisal of evidence concluded that the prosecution has successfully proved its case against the appellant beyond all reasonable doubt. The plea that there has been noncompliance of the provisions of the Act, particularly Section 50 of the Act was repelled. With these findings the impugned judgment and the order of sentence were passed.

The first and foremost question that has been agitated at the bar is that there has been total noncompliance of the provisions of subsection (1) of Section 50 of the Act. There was no dispute raised which in fact is settled by the decision of the Supreme Court in the case of State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : JT 1994(2) SC 108 that provisions of Section 50 of the Act are mandatory. The findings arrived at by the Supreme Court read :

"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 so 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."

Thus, it has simply to be determined if there has been compliance of the provisions of the Act namely as to if the appellant was given an offer before his search that if he likes his person can be searched before a Gazetted Officer or a Magistrate. HC Pritam Lal PW1 deposed that appellant had been apprehended on suspicion and before his search he was told that if he likes his person can be searched before a Gazetted Officer or a Magistrate. The appellant denied the offer. SI Ram Nath PW2 on the contrary has testified that he told the appellant that if he likes his person can be searched before a Gazetted Officer. He does not make a mention that offer was given that search can be effected in presence of a Magistrate. During crossexamination he admitted that he had not mentioned this fact that appellant was informed that his personal search can be effected before a Gazetted Officer. In other words, it is admitted that in the ruqa it had not been mentioned that offer had been given that if the appellant likes his person can be searched before a Gazetted Officer or a Magistrate. The statements so made in court are definitely improved. No offer in writing even had been given. The improved statements in the court have to be taken with a pinch of salt and it is, thus, not established that the offer contemplated under subsection (1) of Section 50 of the Act was given to the appellant. There was noncompliance of the said mandatory provisions.

In addition to that the fact that no public witness had been joined in the peculiar facts cannot be ignored. It is in evidence that Investigating Officer felt suspicious about the appellant being in possession of some contraband material like charas or opium, still no genuine attempt was made to join a public witness to give independent corroboration to the evidence. HC Pritam Lal admits that there are shops and residential houses near the place of recovery. He adds that he had called independent witnesses but they refused to join. It is anybody''s guess as to what were their names. The vague statement, thus made that attempt was made to join public witnesses in the facts of the present case that there were shops and residential houses, cannot be believed. The official testimonies, therefore, in these circumstances become shaky. It cannot be held that it is established beyond all reasonable doubt that prosecution has successfully proved recovery of opium from the person of the appellant.

For these reasons, the appeal is accepted setting aside the judgment and the order of sentence passed by the learned trial court. The appellant is acquitted giving him the benefit of doubt. He be released forthwith if not required in any other case.