Prahlad vs State of Haryana

R.L. Anand, J.—This is a criminal appeal and has been directed against the judgment and order dated 7.10.1997 passed by the Court of Addl. Sessions Judge, Amritsar, who convicted the Appellant Prahlad u/s 18 of the-Narcotic Drugs and Psychotropic Substances Act (hereinafter called the Act) and sentenced him to undergo RI for a period of ten years and to pay a fine of Rs. 1 lac; in default of payment of fine, the Appellant was directed to further undergo Rl for six months.

The brief facts of the case are that on 23.10.1996 a police party consisting of P.W. 1 Karnail Singh, H.C. and other police officials headed by P.W. 2 Kashmir Singh, A.S.I, was patrolling the area. When the police party reached near the cremation ground. Sultanwind Road, Amritsar, they saw the accused coming from the opposite side. On seeing the police party, the accused tried to conceal himself in the bushes. On the basis of suspicion he was apprehended. At that time the accused was carrying plastic cover in his right hand. P.W. 2 Kashmir Singh, A.S.I, told the accused that the latter was having some intoxicant and the former wanted to take the search of the latter and whether the accused wanted to give the search in the presence of a Gazetted Police Officer or a Magistrate. The accused replied to the Investigating Officer that he wanted to give the search in the presence of a Gazetted Officer. Consent memo Ex. PA was prepared which was signed by the accused and attested by A.S.I. Bakhshish Singh and H.C. Karnail Singh, who were the members of the police party. A wireless message was sent to Varinderpal Singh, D.S.P., who came at the spot. He disclosed his identity to the Appellant and thereafter, the personal search of the Appellant was conducted under the supervision of the D.S.P. Opium was recovered, which was weighed and came to 1 Kg. The Thanedar separated opium weighing 10 grams and made a sealed parcel thereof. The remaining opium Ex.P 1 was separately sealed. The sample parcel and the parcel of the remaining opium were sealed with the seal bearing inscription K.S.'' belonging to A.S.I. Kashmir Singh and V.S.'' belonging to Varinder Pal Singh, D.S.P. The case property was then taken into possession vide recovery memo Ex. PB. From the personal search of the Appellant a sum of Rs. 50 was also recovered and this currency was taken into possession vide memo Ex. PC. Resultantly, ruqa Ex. PD was sent to Police Station B-Division, Amritsar for registration of the case u/s 18 of the Act and formal F.I.R. Ex. PD/1 was recorded by S.I. Sardul Singh. The seizing officer prepared rough site plan Ex. PE of the place of occurrence and on return to police station he produced the case property with seals intact before Joga Singh, Inspector/ SHO, who sealed the same with his own seal bearing inscription J.S.''. He kept the case property in the double lockup in the police station. The sample of the opium was sent to the office of the Chemical Examiner, who vide report Ex. PF declared the contents as opium and on the completion of the investigation of the case, the Appellant was challenged u/s 18 of the Act in the Court of Illaka Magistrate, who supplied the copies of the documents to the Appellant and vide commitment order dated 3.2.1997 Shri Jaspal Singh Bhatia, Judicial Magistrate 1st Class, Amritsar committed the Appellant to the Court of Session in order to face the trial.

Vide order dated 19.3.1997 the Appellant was charge-sheeted u/s 18 of the Act on the allegations that on 23.10.1996 at about 2.40 p.m. in the area of near cremation ground Sultanwind Road, Amritsar he kept in his conscious possession 1 Kg. of opium without any permit or license and thereby allegedly committed the said offence. The charge was read over and explained to the Appellant, to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined P.W. 1 H.C. Karnail Singh, P.W. 2 A.S.I. Kashmir Singh, Investigating Officer and D.S.P. Varinder Pal Singh P.W. 3 besides Inspector Joga Singh P.W. 4. P.W. 5 Constable Sakatar Singh gave his statement on affidavit Ex. P.W. 5/A as his statement was of formal nature. The prosecution also tendered in evidence the report of the Chemical Examiner Ex. PF and closed the case.

The statement of the Appellant was recorded u/s 313, Code of Criminal Procedure and all the incriminating circumstances appearing in the prosecution evidence were put to him. The Appellant denied those circumstances and stated as follows:

I am innocent. 1 am doing the business of white-washing. 1 was apprehended by the police 10 days prior to my alleged arrest in this case. I was kept in illegal detention and I was falsely implicated in this case.

When called upon to enter into his defense, the Appellant examined HC Gurvail Singh as D.W. 1, who proved the copy of the entries of Register No. 19 as Ex. Dl. D.W. 2 Partap Singh deposed that on 21.10.1996, at 10.00 a.m., the police party kidnapped his brother Balraj Singh, Mushtak and Prahlad Appellant. On 22.10.1996 he gave telegram to the Chief Justice of Punjab and Haryana High Court and the copy of the telegram is Ex. D2. In the cross-examination it has been stated by this witness that he did not know Prahlad, the present Appellant and Mushtak and the names of these persons were told to him by his father. The Appellant also tendered in evidence the certified copy of the judgment Ex. D3 dated 29.8.1997 which was passed by the Court of Shri D.K. Monga. Addl. Sessions Judge, Amritsar, in different F.l.R. No. 112/1996.

The learned trial court relied on the story of the prosecution and rejected the defense version. The trial court convicted and sentenced the Appellant Paroled in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.

I have heard Shri D.S. Pheruman. Advocate, on behalf of the Appellant, Shri J.S. Brar, D.A.G., Punjab, on behalf of the State and with their assistance I have also gone through the record of this case.

The learned Counsel for the Appellant made Endeavour in order to secure acquittal for his client and he assailed the judgment and order of the learned trial court from legal and factual position. It may not be wrong on my part if I say that Shri Pheruman tried to raise more legal arguments than the factual one. He wanted to secure the acquittal by pointing out some legal flaws in the mode of investigation. But I must say that all his efforts remained unsuccessful.

The first submission raised by the learned Counsel for the Appellant was that the provisions of Section 50 of the Act have not been complied with in the strict sense by the Investigating Officer. The counsel submitted that the Investigating Officer was under obligation to tell the Appellant that he had the right to summon any of the Gazetted Officers as mentioned in Section 42 of the Act or a Magistrate before whom the search can be taken. His second submission was that it is obligatory on the part of the Investigating Officer to apprise the Appellant of his right that the Appellant could give the search in the presence of a Gazetted Officer or in the presence of a Magistrate. Both the submissions-which have been raised by the learned Counsel for the Appellant, are not borne out from the record and also they are not legally correct. Section 50 of the Act can be quoted as follows:

Conditions under which search of persons shall be conducted.-(1) When any officer duly authorised u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43 he shall, if such persons 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.

2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in Sub-section (1).

3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

4) No female shall be searched by anyone excepting a female.

The provisions of this section came up for consideration before three Judges Bench of the Hon''ble Supreme Court In the case of Raghbir Singh v. State of Haryana 1996 SCC 266: 1996 (1) EFR 325 (SC). In this case the two Hon''ble Judges of the Supreme Court referred the following question with regard to the interpretation of Section 50 for decision by a larger Bench:

Whether a person to be searched u/s 50 has a right to be given option of being searched either by a Gazetted Officer or by a Magistrate ?

Answering the question and concurring with the view taken in Manohar Lal v. State of Rajasthan 1996 (1) RCR 659: 1996 (1) EFR 324 (SC) the Hon''ble Supreme Court came to the conclusion that Section 50 of the Act affords the person to be searched a safeguard and he may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available. The ratio of the Hon''ble Supreme Court can be described as follows:

It is, therefore, clear that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available.

The reading of Section 50 would show that option under the section is only of being searched in the presence of such senior officers. 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 or Magistrate.

Now it is to be seen what has happened in the present case. It is not disputed that search was conducted in the presence of Varinder Pal Singh, D.S.P., who was admittedly the Gazetted Officer. In view of this I am of the opinion that Section 50 has been complied with in the present case. In the case of Raghbir Singh (supra), the Appellant was given the option of being searched by the Police Officer, who conducted the search, before a Gazetted Officer and a specific contention was raised on behalf of the Appellant that since the accused was nor told that he could opt to be searched before a Gazetted Officer or Magistrate, the provisions of Section 50 were not complied with. But this contention did not find favor with the Hon''ble Judges of the Apex Court. Thus, I have no hesitation in declining the first argument raised by Shri Pheruman when he stated that Section 50 has not been complied with as the Investigating Officer did not apprise the Appellant of his right as enshrined u/s 50 and secondly it is not clear from the option Ex. PA that the Appellant could call any of the Gazetted Officers as mentioned in Section 42 of the Act. The reading of Ex. PA, the consent statement, clearly indicates that A.S.I. Kashmir Singh, Investigating Officer, apprised the Appellant of the right to be searched in the presence of a Gazetted Police Officer or a Magistrate. However, the Appellant deposed that he wanted to give the search in the presence of a Gazetted Officer. Resultantly, Gazetted Officer Shri Varinder Pal Singh, D.S.P. was called at the spot and under his supervision the search of the person of the Appellant was conducted and opium weighing 1 Kg. was found. In this view of the matter I am of the opinion that Section 50 in this case has been complied with. To support my reasons I can also rely upon Raj Kumar v. State of Haryana 1997 (2) RCR 798, a Division Bench judgment of this Court where similar proposition of law was addressed before the Hon''ble Judges but was not approved.

The counsel for the Appellant then submitted that in this case the seal after use has not been handed over to an independent person. This contention is again devoid of merit. I may say at the first instance that under the Act there is no mandate of the law that seal after use should be handed over to an independent person nor possibly there can be such mandate because the situation can arise when a recovery of narcotic drug is effected at such odd hours when the independent witness may not have been associated by the police party or it may not be available at the spot. The handing over of the seal to an Independent witness is only a rule of caution so that chances of tampering with the incriminating article may not be there on the part of the police or the investigating agency which has the vast powers under the Act. Here is a case where the Appellant appeared at the place of occurrence per chance. On seeing the police party he tried to conceal his identity. On the basis of suspicion he was apprehended. The Thanedar enquired the option from the Appellant, who deposed that he wanted to give the search in the presence of a Gazetted Officer. Section 50 has been introduced in the Act for the benefit of the person to be searched. The Legislature has used the words "Gazetted Officer or Magistrate" with some wisdom in Section 50 because they are responsible persons/officers of the society and of the administration. In the present case the case property was sealed at the spot with the seal of the Investigating Officer and that of the D.S.P. The Investigating Officer handed over his seal to his colleague. On the same day the case property was produced before Inspector/S.H.O. Joga Singh, who re-sealed it with his own seal and on the same day the case property goes to the double lockup and remained in the custody of M.H.C. The sample seal v-.s also prepared at the spot. Docket was got prepared on 29.10.1996 just after six days of the recovery and it reaches the office of the Chemical Examiner, who certifies in the report Ex.PF that the seals on the exhibit were intact and agreed with the sample seals which were sent along with the case properly. The sample seals have even been affixed on the report Ex. PF which will show that three seals bearing inscription VS'', JS'' and KS'' have been pasted. In these circumstances no benefit of doubt can be granted to the Appellant nor to the counsel for the Appellant when he argued on behalf of his client that seal after use has not been handed over to independent witness.

The next argument which was built up by Shri Pheruman was that the police has not examined any-independent witness nor any independent person has been associated at the time of the arrest of the Appellant. It was all a departmental affair and, therefore, benefit of doubt should go to the Appellant. I am not again convinced with this argument. A Tom, Dick and Harry, or a passerby or a rickshaw-puller cannot be regarded as more credible than that of a Gazetted Officer or a Magistrate. The Government appoints a Gazetted Officer or promotes a person to the post of a Gazetted Officer or appoints a Magistrate and such persons are appointed with some sense of responsibility. It is not believable that Shri Varinder Pal Singh, D. SiP. would just toe the line of A.S.I. Kashmir Singh as a matter of course. The legislature in Section 50 of the Act has intentionally used words "Gazetted Officer or the Magistrate" because these officers have further been given the powers to give the directions to the Investigating Officer to release the person forthwith if they are satisfied that nothing incriminating was recovered. To give a loose interpretation as sought for by Mr. Pheruman would be nothing else but undermining the authority of a Gazetted Officer or a Magistrate though such Gazetted Officer may be of police department. The law is well-settled that the statements of public officials are to be considered at par with that of non-official witnesses. Only rule of caution Is required to be adopted. It is not suggested why Shri Varlnder Pal Singh, D.S.P. would depose against the Appellant. He was brought at the spot for the benefit of the Appellant. He had to discharge his duty and if opium has been recovered from the possession of the Appellant, the law must take its own course. '' 15. It was then submitted by the learned Counsel for the Appellant that the opium has been planted upon his client and much reliance has been placed on telegram Ex. D2 and copy of the judgment Ex. D3. The counsel submitted that Partap Singh son of Lakhbir Singh gave a telegram to the Chief Justice on 22.10.1996 In which he has clearly indicated that the present Appellant along with Mushtak and Balraj Singh had been arrested by the police on 21.10.1996. The criminal case was registered against Balraj Singh vide F.l.R. No. 112 of 1996 and opium weighing 6 kgs. was planted upon him, but he has been acquitted on 29.8.1997. The counsel wanted to say that the present Appellant and Mushtak were arrested on 21.10.1996 and they were in the custody of the police w.e.f. 21.10.1996 and in these circumstances, the opium could not be recovered from the possession of the Appellant on 23.10.1996. Firstly, 1 may say that this telegram is nothing but a pre-emptory measure which is invariably adopted by the persons who deal in the trade of narcotics, etc. Moreover, the statement of D.W. 2 Partap Singh is totally not reliable. He is stated to be the author of the, telegram. This man in the cross-examination has stated that he did not know the accused Prahlad and Mushtak. His father told about the names of Prahlad and Mushtak. Equally possible that when Balraj Singh was arrested, he could easily apprehend that his companions Prahlad and Mushtak would also be arrested on subsequent days because they were also dealing in the same trade. Moreover, the defense of Prahlad is suicidal. According to him, he was arrested 10 days prior to 23.10.1996, meaning thereby he was with the police since 13.10.1996. In the light of this defense, the telegram appears to be false. Acquittal of Balraj Singh is under different set of circumstances. We all know that the law Courts go by evidence. If the evidence of one case is deficient or wanting, how the finding of that file can be imported into the finding of other file. Thus, the acquittal of Balraj Singh, which was on different parameters, cannot come to the rescue of the Appellant. In State of Punjab Vs. Labh Singh, , the Hon''ble Supreme Court had held "Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The Court has to consider each case on its own setting," The other ratio of this judgment is not applicable to the facts in hand because it is proved that Appellant was informed of his right u/s 50 to be searched in the presence of a Gazetted Officer. Consent statement is there. The testimony of three witnesses, who have corroborated inter se the main allegations of the prosecution, established that opium was recovered from the possession of the Appellant, who could not produce any license or permit for the possession of the same.

15.The last feeble argument which was raised by the learned Counsel for the Appellant was that grounds of arrest have not been supplied to the Appellant. In other words, the Counsel wanted to take the benefit of Section 52 of the Act. This submission is again devoid of any merit. Section 52 is directory in character and not mandatory. Even the combined reading of the documents prepared at the spot by the Investigating Officer would show that Appellant was informed that he was going to be arrested in a case under the Act and the allegations were also explained to the Appellant that he was in possession of some narcotic drugs. This is the purpose of Section 52 of the Act. The object has been fully complied with. Purpose has been explained. No prejudice has been caused to the Appellant. Copy of the F.l.R. has been sent to the Magistrate. It was received by him on 23.10.1996 at 6.30 p.m. within just four hours of the arrest of the Appellant.

Thus, I have measured the legal and factual position of this case from all the angles and in the light of the submissions raised by the learned Counsel for the Appellant, I am of the considered opinion that this appeal is totally devoid of any merit and the same is hereby dismissed.

Let the intimation about the dismissal of this appeal be sent to the jail authorities.