Om Parkash vs State of Punjab

S.C. Malte, J. (Oral)

The accused was prosecuted and convicted by the Additional Sessions Judge, Ludhiana on the charge under Section 18 read with Section 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Briefly stated, the prosecution case is that on 24.12.1985 while the police party was on patrolling duty, it happened to spot the appellantaccused. They found that the movements of the accused were suspicious inasmuch as he retraced his steps on seeing the police party. The police party, therefore, accosted him. On search of his bag, it transpired that the bag contained 1 Kg and 950 gms of opium wrapped in a glazed paper. The opium was weighed and duly sealed. Accused was taken in custody and he was brought to the police station. At the police station, a report was made. On the basis of that report, F.I.R. was recorded and registered on the same day at about 7.00 p.m. The arrest of the accused and the attachment of the opium had taken place at about 6.40 p.m. on the same day.

The prosecution led the evidence of two of the police officials forming the patrolling party. Besides that, formal evidence in the form of affidavits was led to link up the formal part of the investigation. The sample of the opium which was extracted at the time of seizure itself, was sent to the Chemical Analyst. His report confirmed the fact that it was opium.

After investigation, the police put the challan against the accused. After the evidence led by the prosecution was over, the accused was questioned under Section 313 of the Code of Criminal Procedure. The defence by the accused in general was that he was wrongly apprehended at the bus stand and thereafter these policemen demanded illegal gratification from him in order to let him off. Since he did not give that gratification he was falsely booked for the offence.

The trial Judge considered the evidence. He did not find favour wit the stand taken by the accused. Consequently, he convicted the accused under the Sections mentioned above and sentenced him to R.I. for ten years and fine of Rs. 1 lac, in default, R.I. for two years. Against that judgment of conviction dated 4.9.1986, this appeal was preferred.

Mr. R.S. Sihota, Advocate was appointed as amicus curiae to argue the appeal on behalf of the accused. He submitted that the place where the accused was apprehended, is a congested area and, therefore, it was expected of the prosecution to get some independent witnesses also. It was further submitted that the testimony of these two police officials does not inspire confidence inasmuch as it is not supported by some independent witnesses and there are certain discrepancies in their evidence also. It was further contended that there was serious lacuna of noncompliance of Sections 50 and 57 of the N.D.P. & S. Act.

On behalf of the State, the Deputy Advocate General, Punjab submitted that the Patrolling Party spotted the accused per chance and it was a chance recovery of opium. It was, therefore, submitted that the compliance of Section 50 was rendered redundant in such case. It was also submitted that the other compliance under the provisions of NDP&S Act has been performed and there is no lacuna in the investigation. Regarding the discrepancies in the evidence of these two constables, it was submitted that the testimony cannot be discarded simply because they happen to be police officials. It was submitted that the area where the accused was apprehended is a little away from the shopping complex which was about 100 yards away.

I have heard the counsel for both the sides. With the help of the counsel, I read the evidence of PW.1 Constable Gurmel Singh and PW.2 ASI Amar Singh. Both these witnesses consistently stated that on 24.12.1985 at about 5.30 P.M. they arrived at a place known as ''Bhai Wala Chowk''. There they were posted as a patrolling party. They further testified that they saw the accused approaching and found that the accused started retracing his steps on seeing the police party. That was enough to arouse suspicion that the accused wanted to avoid the police for some good reason. Obviously, therfore, he was apprehended at the spot. During search of the bag carried by the accused, the police came across the opium mentioned above. Thus, it would appear that the recovery of the opium was a chance recovery. The counsel for the accused submitted that even in such cases where the police was well aware of the NDP&S Act, it can be reasonably inferred that the police at the initial stage suspected that the accused was carrying contraband articles under the NDP&S Act. On this premise it was submitted that before the search was effected, compliance of Section 50 of the NDP&S Act was mandatory. It was submitted that the accused should have been asked as to whether his search should be conducted in the presence of gazetted officer or the Magistrate. In support of his contention, he drew my attention to 1996(2) RCR (Crl.) page 288 (State of Punjab v. Tarlok Singh) . In this case, a Division Bench of this court was considering the allegations that accused was found in possession of 60 gunny bags containing poppy husk. The recovery was by the police while they were on patrol duty. Their Lordships have undoubtedly observed that in such cases where a vehicle is searched, the compliance of Section 50 was necessary. However, my attention was also invited to another case decided by the Supreme Court in case of State of Punjab v. Balbir Singh, 1994(1) R.C.R (Crl.) 737 : 1994 (2) CLR 265. In that case, while considering various provisions including the provisions of Section 50 of the NDP&S Act, their Lordships observed as follows :

"If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a persons 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 the 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 other provision of the NDPS Act."

In this case the police was patrolling in the area, headed by the ASI Amar Singh. There is nothing to indicate that ASI Amar Singh was not a person empowered to investigate the case. Since it was a chance recovery during the search of the accused who was suspected to have committed some offence, the compliance of Section 50 in such case would not be possible nor necessary. It is because recovery is already made. Section 50 contemplates when a search is to be made in order to find out whether the person possesses contraband article under NDPS Act.

The counsel further submitted that the provision of Section 57 of the NDPS Act was also not complied with. Section 57 reads as follows :

"57. Report of arrest and seizure. Whenever any person makes any arrest or seizure under this Act, he shall, within fortyeight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."

A bare perusal of that provision indicates that after the seizure of the article and arrest of the accused, a full report of the arrest or seizure is to be made to the immediate superior official. In this case, it is clearly established that soon after the articles were seized and accused was taken in custody he was brought to the police station where initially a daily diary report was recorded. On the basis of that the F.I.R. came to be registered. In my opinion, a report that is recorded in the daily diary is sufficient compliance of Section 57. The ASI has, thus, reported the matter to the officer Incharge of the police station and, thus, it is sufficient compliance. The counsel for the accused submitted that the FIR was initially registered under the Opium Act and not under the NDPS Act and, therefore, it cannot be said that it was in compliance of Section 50 of the Act. In my opinion, that argument does not at all appeal for the simple reason that what Section the police official had applied while registering the offence, loses the significance when one finds that what is required to be done is to report regarding the arrest of the accused and seziure of the articles. Once that is done, even a wrong application of Section while recording the FIR would not amount to noncompliance of Section 57 of the NDPS Act. In this view I am fortified by the decision of Full Bench of this Court reported in the case of State of Punjab v. Kulwant Singh. 1994(1) RCR (Crl.) 303 : 1994(1) CLR 198. In that case, their Lordships observed that the provisions of Sections 41, 42, 52, 55 and 57 of the NDPS Act are mandatory in the sense that the concerned police officials are bound to comply with the same but their noncompliance perse would not prove fatal to the case unless it has resulted in miscarriage of justice or prejudice to the accused on the facts of a particular case.

The testimony of these two police officials is quite consistent. Certain minor discrepancies such as the distance at which the accused was, and distance of the shopping complex from the scene of offence, would not undermine their testimony. In their testimony, they have further clarified that though there is a shopping complex at a distance of about 100 yards from the scene of offence, but near about the complex there were no shops and there were no passersby except two persons who passed by on scooter. At any rate, in my opinion, there is nothing to doubt the testimony of these two police officials simply because they happened to be the policemen. There is nothing to show that they were indisposed towards the accused or they wanted to implicate him falsely.

I, thus, find no substance in this appeal. Hence, dismissed.