Pirthi Singh alias Beg Raj vs State of Haryana

K.K. Srivastava, J.

Appellant Pirthi Singh was tried in the Court of Shri V.S. Malik, Additional Sessions Judge, Hissar, for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (in short "the Act"). The learned Additional Sessions Judge believed the prosecution evidence and held him guilty of the offence punishable under Section 18 of the Act, convicted him thereunder and sentenced him to suffer RI for 10 years and imposed a fine of Rs. one lac and in default to undergo further RI for two years.

Ram Kumar ASI of police station Adampur was present in the area of village BhooriaBishnoian on 22.8.1993, where he was having a talk with one Balwant son of Bhagi Ram. HC Dharam Pal and two Constables were also present there when ASI Ram Kumar received a secret information about the carrying of illicit opium. Acting upon this information, Ram Kumar ASI sent a rukka to the police station on the basis of which a case was registered by Vijay Singh MHC. ASI Ram Kumar then laid an ambush and sometime thereafter the accused/appellant Pirthi Singh was seen coming on foot from the side of village Dhand. He was holding a bag in his right hand. Ram Kumar ASI apprehended him and told him that he had a suspicion that the appellant was carrying some opium or some other intoxicant substance with him and that he wanted to take search of his person. The accused was given an offer to have his search taken before some gazetted officer or Magistrate. The accused exercised his option to have his search taken in the presence of a gazetted officer. His statement was recorded accordingly and his signatures were obtained thereon. He was then brought to the police lines, Hissar, and produced before Inder Dutt DSP, a gazetted officer. Upon a written request made by ASI Ram Kumar to the said DSP, the search to the bag held by the accused was conducted by ASI Ram Kumar which yielded recovery of illicit opium. 200 grams of opium was separated as a sample and the reminder opium weighed 5 Kgs 800 Grams. The sample and the remaining opium were separately sealed with the seal mark ''IDS'' and ''RK''.

After use the seal mark ''RK'' was handed over to HC Dharampal while the DSP retained the other seal mark ''IDS''. A recovery memo (Exhibit PG) was prepared, which was duly attested by DSP Inder Dutt, HC Dharampal and Balwant. The grounds of his arrest were disclosed to the accused. The statements of the witnesses were recorded. The Investigating Officer went to the spot and prepared rough site plan of the place where the accused was apprehended. The accused was then brought to the police station and lodged in the lock up. The recovered articles were deposited in the Malkhana. The sample was later on sent for analysis to the Chemical Examiner, who sent his report to the effect that the sample was of opium. After completion of the investigation, a challan was submitted under Section 173 Cr.P.C. by SI/SHO Raunki Ram in the Court of Judicial Magistrate Ist Class, Hissar, who committed the case to the Court of Sessions vide order of commitment dated 6.7.1994. The Sessions trial was entrusted to the Additional Sessions Judge, who conducted the proceedings under Sections 226/228 Cr.P.C. and found sufficient grounds for presuming that the accused had committed an offence punishable under Section 18 of the Act and chargesheeted him thereunder. The charge was then read over and explained to the accused in Hindi. He pleaded notguilty to the charge and claimed to be tried.

At the trial, the prosecution examined Constable Umedh Singh (PW 1); Constable Vijay Kumar (PW 2), both of whom were formal witnesses, who had already filed their affidavits; HC Vijay Singh (PW 3), who also tendered his affidavit; Shri Inder Dutt, DSP PW 4); HC Dharampal (PW 5); ASI Ram Kumar (PW 6); and Raunki Ram (PW 7). The evidence of the prosecution was closed.

In his examination under Section 313 Cr.P.C., the accused denied the prosecution evidence and stated that he would lead evidence is defence. However, subsequently he did not examine any witness in defence.

Believing the prosecution evidence, the learned Additional Sessions Judge convicted the accused and sentenced him to undergo the minimum prescribed sentence, i.e. to suffer RI for ten years and to pay a fine of Rs. one lac and in default of payment of fine to suffer further RI for two years.

Feeling aggrieved against his conviction and sentence the accused/appellant has now come up in appeal.

I have heard the learned counsel for the appellant and learned AAG for the State of Haryana/respondent. I have been taken through the evidence recorded at the trial and have carefully perused the judgment of the learned trial Judge.

Mr. R.S. Ghai, learned Senior Advocate for the appellant pointed out that in this case the compliance of the mandatory provisions of Section 50 of the Act has not been made. The offer regarding the search of the accused before a gazetted officer or a Magistrate, according to the evidence led by the prosecution, was only partial. The evidence of the prosecution regarding the compliance of the provisions of Section 50 of the Act was referred to by the learned counsel for the appellant. He pointed out that H.C. Dharampal (PW 5) stated that the ASI Ram Kumar had asked the accused to tell if he had confidence in the ASI or if he wanted to get his search conducted before a gazetted officer or a Magistrate and it was replied by the accused that he had no confidence in the ASI and wanted his search to be made before some gazetted officer or a Magistrate. He referred to the memo. (Ex. PJ) prepared at the spot, signed by the accused, regarding the offer made to the accused as envisaged by Section 50 of the Act. In crossexamination, the attention of H.C. Dharampal was drawn to his statement recorded under Section 161 Cr.P.C. wherein it was recorded that the ASI had given him the offer of having his search taken before the gazetted officer or Magistrate. It was also not recorded that the accused had expressed his desire to be searched before some gazetted officer or Magistrate. AsI Ram Kumar (PW6) stated about the offer made by him to the accused that he had the option for his search to be conducted before some gazetted officer or Magistrate, regarding which the memo (Ex. PJ) was prepared by him, which was signed by the accused and the witnesses. In crossexamination he stated that no other document excepting memo (Ex. PJ) was prepared in respect of the option given to the accused. It would appear from the perusal of memo. (Ex. PJ) that in the presence of witnesses Balwant and HC Dharampal the accused/appellant Pirthi Singh @ Beg Raj son of Kansi Ram, Bishnoi, resident of BhoriaBishnoian during interrogation expressed his consent for giving his search in the presence of any G.O. (obviously referring to a gazetted officer), regarding which this memo. was prepared separately. The memo is in vernacular (Hindi), which may be reproduced as under :

"Fard Sehmati Talashi

Rubruh Gavahan Jail Musmi Pirthi Singh alias Beg Raj, son of Kansi Ram, Bishnoi, resident of BhoriaBishnoian nen dorane Poochhtachh apni sehmati parkat kari ke "main apni talashi kisi G.O. ke samne dena chahta hun jiski fard sehmati alag se murtab ki gai". Jis par gavahan ke va Pirthi alias Beg Raj ke alabdat karvaye gaye.

Sd/

Ram Kumar ASI

Dt. 22.8.1993

Sd/ Balwant son of

Bhagi Ram Sd/

Bishnoi, Pirthi @ Beg Raj, Majkoor

r/o Bhorian Pirthi Singh

Sd/ Dharampal HC 429,

Police stationAdampur."

It is abundantly clear from the memo. (Ex. PJ) that the offer made to the appellant was only partial inasmuch as he was not apprised of his right to have his search taken before a Magistrate. An attempt was made by HC Dharampal (PW 5) and ASI Ram Kumar (PW6) in the witness box to make improvement in their statements apart from the gazetted officer in the offer said to have been given to the accused at the time of his apprehension and intended search. A Division Bench of this Court in the case of Supreet Singh and another v. State of Punjab, 1997(1) CLR 275, has held that the partial offer made to the accused regarding his search is not a compliance of the mandatory provisions of Section 50 of the Act. In the case of Manohar Lal v. State of Rajasthan, 1996(1) RCR (Crl.) 660 : JT 1996(1) SC 480 the Apex Court has no doubt held that once the accused is apprised of his right of the search being taken before a gazetted officer or a Magistrate and after he exercises his option to have his search taken before the said authorities, the accused has thereafter no choice to insist that his search be taken before a gazetted officer or a Magistrate. It was held that once the accused exercises his option to have his search taken before an aforesaid authority, i.e. a gazetted officer or a Magistrate, then it would be for the Sub Inspector to take him to the nearest available gazetted officer or a Magistrate. This cannot be held to be a valid offer and compliance of the provisions of Section 50 of the Act, because the accused has to be apprised of his right, as envisaged by Section 50 of the Act, which specifically provides for the option on the part of the person to be searched, to have a search taken before gazetted officer or Magistrate. It is now well settled that the right of the person to be searched, as envisaged under Section 50 of the Act, is a valuable right and he has to be apprised of his aforesaid right of exercising the option regarding the search to be taken. It has also been well settled that no presumption can be raised in favour of the official acts being taken in a proper manner and the prosecution is duty bound to lead evidence to show that there has been compliance of the provisions of Section 50 of the Act in its entirety. Once the prosecution succeeds in proving that the provisions of Section 50 of the Act were complied with inasmuch as the person to be searched was apprised of his right to have his search taken before a gazetted officer or a Magistrate, then no doubt, as held in Manohar Lal''s case (supra), the accused would not have a further option of the search to be taken by a particular authority. The noncompliance of the provisions of Section 50 of the Act which are mandatory in nature, would render the conviction of the appellant contrary to the provisions of law.

Resultantly, the appeal succeeds. The conviction and the sentence passed by the learned trial Judge are set aside and the appellant is acquitted of the charge levelled against him.