Prem vs State of Haryana

H.S. Bedi, J. (Oral)

This appeal arises out of the following facts :

On 27th July, 1990 PW5 Dharam Pal Sub Inspector along with a police party consisting amongst others of PW3 Ram Kumar Head Constable were present at about 1.30 p.m. on the G.T. Road in front of Haldana Police Post. One Prem Singh PW was also present along with them.

In the meantime a Haryana Roadways bus bearing No. HNE 378 came from Delhi side. The bus stopped at a distance of 50 yards from the police party and accused Prem alighted therefrom and started walking away briskly towards village Haldana. This conduct of the accused excited the suspicion of the police party and he was accordingly apprehended and an offer was made to him as to whether he would like to be searched in the presence of a gazetted Officer. In the meantime PW7 Pirthi Singh DSP admittedly a gazetted officer reached the place and the accused and the bag that he was carrying on his shoulder were brought before him. The search of the accused and his bag in the presence of Prithi Singh Saini, DSP, led to the recovery of 2 kgs of opium. A small quantity of opium was separated as a sample and the rest was sealed and taken into possessions. PW5 Dharam Pal ASI sent a ruqa Ex. PD to the police station on which a formal first information report Ex. PD/1 was also recorded by Head Constable Ram Krishan. On completion of the investigation, a case for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as the ''Act'') was made out against the accused and as he pleaded not guilty, he was brought to trial.

In order to prove the allegations against the accused, the prosecution examined amongst others, Head Constable Ram Kumar as PW3, Prem Singh as PW4, Sub Inspector Dharam Pal PW5, Pirthi Singh Saini DSP PW7 in addition to the formal evidence that was required to link the accused with the crime.

After the close of the prosecution case the accused was examined under Section 313 Cr.P.C. and denied the allegations and pleaded false implication.

The trial court came to the conclusion that the evidence of SI Dharam Pal PW5 read along with that of Head Constable Ram Kumar PW3 Prem Singh PW4 the only independent witness and Pirthi Singh Saini DSP PW7 conclusively proved the recovery of the opium from the accused, that the other evidence indicated that the opium that had been recovered had been kept in proper custody and that there had been a prima facie compliance with the provisions of Section 50 of the Act inasmuch the accused had been searched in the presence of a gazetted officer, that is, PW7 Pirthi Singh Saini DSP and also an independent witness Prem Singh PW4; that the minor discrepancies in the evidence of the prosecution witnesses could justifiably be ignored and having held as above, convicted and sentenced the accused to 10 years'' RI and to the payment of fine of Rs. 1 lac and in default of payment to undergo three years'' RI more. Hence this appeal.

Mr. D.V. Gupta, the learned counsel appearing in support of the appeal has urged first and foremost that the facts of the case indicated that the provisions of Section 50 of the Act had not been complied with and in the light of the judgments of the Supreme Court in State of Punjab v. Balbir Singh, 1994(3) Supreme Court Cases 299 and Mohinder Kumar v. State of Panaji Goa, 1995(2) RCR 599 the accused was entitled to acquittal on that short ground.

As against this, the learned State counsel Mr. B.S. Badhran had argued that there had been compliance with the provisions of Section 50 of the Act inasmuch as that an offer had been given to an accused as to whether he would like to be searched in the presence of a gazetted officer or a Magistrate, the further choice as to before which of these two officers be was to be searched was left to the investigating authorities and this appeared to have been done in the present case, the provisions of section 50 of the Act had been complied with. In support of his plea Mr. Badhran had relied on Manohar Lal v. State of Rajasthan, 1996(1) Recent Criminal Reports 659. Mr. Bardhan has also argued that the provisions of section 50 of the Act were even otherwise to be complied with as a mandatory provision only in a case where the search and seizure was to be made on the basis of prior information with the police and not in such a situation (as in the present case) where it was a chance encounter consequent on the alighting of the accused from a bus that was coming from the opposite side.

I have heard the learned counsel for the parties and have also gone through the judgment cited by them in support of their respective case. Balbir Singh''s case (supra) which is a case where there was a prior information with the police, the Supreme Court did observe the provisions of section 50 had to be mandatorily complied with in such a situation. This principle was further extended by the Supreme Court itself in Mohinder Kumar''s case (supra) wherein it was observed that these provisions were also required to be complied with in case of chance encounter between the police party and the accused, provided it was the suspicious conduct of the accused that had aroused the curiosity of the police party and had led to his apprehension and search. Applying the ratio of the aforesaid judgment to the facts of the present case it is apparent that it was the suspicions raised by the conduct of the accused in trying to slip away after alighting from the bus that had raised the suspicions of the police party and which had led to his apprehension. In the light of the judgment in Mohinder Kumar''s case (supra), therefore, before the accused could be searched an offer in terms of section 50 of the Act had to be given to the accused.

The question now arises as to whether an offer in terms was given to the accused. The two material witnesses on this point are PW3 Head Constable Ram Kumar and PW5 SI Dharam Pal and they both have clearly stated that the only offer that was given to the accused was as to whether he would like to the searched in the presence of a gazetted officer. It was in this situation that PW7 Pirthi Singh Saini who happened to reach there at the crucial moment was associated with the search and the opium was recovered in his presence. Section 50 of the Act envisages that the accused is entitled to be given an offer that he can be searched before a gazetted officer or a Magistrate. Admittedly in the presence case the compliance was partial and incomplete as no offer was given with regard to a possible search in the presence of a Magistrate. The observations of the Hon''ble Supreme Court in Manohar Lal''s case (supra) relied on by the learned State Counsel therefore do not come to his aid for the simple reason that in the cited case the offer in terms of Section 50 of the Act had in fact been made.

In the light of what has been held above, no other point needs be gone into.

This appeal is accordingly allowed, the judgment under reference is set aside and the accused acquitted of the charge framed against him.