Prem Chand vs State of Punjab

Dr. Sarojnei Saksena, J.

Accusedappellant has come up in appeal against the judgment dated 7.11.1986 of Shri R.L. Anand, Additional Sessions Judge Ludhiana, whereby he has convicted the appellant under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter in short the ''Act'') and sentenced him to 10 years rigorous imprisonment with a fine of Rs. one lac, in default to further undergo rigorous imprisonment for two years.

The factual matrix of the case is that on 23rd of January, 1986 at about 4 a.m. Head Constable Nasib Chand (PW2), Head Constable Sukhdial Singh (PW1) and Constable Sukhbir Singh started from the police station Kotwali for patrolling. On the way Constable Sukhdev Singh also joined them. When they were proceeding towards the side of Chowk Mata Rani at about 4.20 a.m. they saw accused coming from the side of Chowk Mata Rani. He was carrying a Jhola Ex. P2 in his hand. On seeing the approaching police party, the accused sat on the ground simulating to urinate. Thus on suspicion, Head Constable Nasib Chand along with the members of his police party apprehended the accused and took the search of Jhola Ex.P2. It contained opium weighting 2 kgs 10 gms. Head Constable Nasib Chand took out a sample of 5 gins. Kept it in empty match box. The remainder was kept in a tin box ExP.1 and both the parcels were sealed with his seal bearing alphabet ''N''. He also prepared a seal impression on a paper. After use, the seal was handed over to the Sukhdial Singh. Ruqa was sent to the police station, FIR Ex.PG/1 was recorded. After completing the investigation Head Constable Nasib Chand went to the police station along with the accused. He deposited the case property with seals intact with MHC Shamshun. Later on this sealed packet of the sample of opium was sent to Chemical Examiner who gave his report Ex.PG and opined that it contains opium.

Accused denied the guilt. His plea is that of false implication on the ground that he being a rickshaw puller was asked by head constable Nasib Chand and Sukhdial Singh to leave them at the police station. After leaving them there when he demanded the fare, these head constables made him to sit in the police station and ultimately this false case was foisted upon him. He has not adduced any evidence in defence.

The prosecution examined Head Constable Nasib Chand (PW2), Head Constable Sukhdial Singh (PW1) and tendered in evidence affidavits of MHC Shamshun Ex.P.E. and of Kuldip Singh, ExPF and report of the Chemical Examiner Ex.P.G.

The trial Court minutely scanned the evidence tendered by the prosecution, repelled all the arguments advanced by the defence counsel and held the appellant guilty of the charge and convicted him as aforesaid.

The appellant''s learned counsel stressed vehemently that in this case recovery was made by Head Constable Nasib Chand who is not an authorised officer under Sections 41 and 42 of the Act. Hence the whole process of search and seizure is in utter violation of the mandatory provisions of Sections 41 and 42 of the Act.

The learned counsel appearing for the respondent State, contended that this Act came into force on 14.11.1985. Accusedappellant was searched on 23.1.1986. Till then no Police Officer was authorised under the provisions of the Act by the State of Punjab. The State of Punjab authorised its police officials under the Act vide notification No. 5033/CA.61/35/SS 42 and 67/68 dated 3.9.1987. Before that if any Police Officer, not authorised under the Act conducted any search or seizure, such investigation is protected under Section 74 of the Act. He further submitted that since on the day of arrest Head Constable Nasib Chand was not aware of the enforcement of the Act, he registered the offence under Section 9 of the Opium Act.

Provisions of Sections 41, 42, 43 and 74 of the Act were taken into consideration by a Division Bench, of this Court in Union Territory, Chandigarh v. Ram Parkash, 1994(1) RCR 718 . In this case it is held that Section 74 provides transitional provisions qua the powers to investigate during the period till no such powers are conferred under Sections 41 and 42 of the Act. In view thereof, I find that though on 23.1.1986 Head Constable Nasib Chand was not an authorised Police Officer to conduct search and seizure under the Act but the investigation conducted by him is not vitiated.

The appellant''s learned counsel further contended that the provisions of Sections 41, 50, 52 and 57 are not complied with. These provisions are mandatory. Hence, due to noncompliance of these provisions the accused is entitled to acquittal. To support his contentions, he has relied on State of Punjab v. Kali, (1993(2) All India Criminal Law Reporter 299; State of Punjab v. Balbir Singh, 1994(1) RCR 736 and Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994(3) RCR 595 .

In this case both prosecution witnesses have stated on oath that the accused never expressed that his search should be taken before a Gazetted Officer or before a Magistrate. That is not the correct position of law. It is the duty of the Investigating Officer to inform the accused of his right, that his search can be taken either before a Magistrate or before a Gazetted Officer. But in the instant case it is apparent from the statement of Head Constable Nasib Chand (PW2) and Sukhdial Singh (PW1) that it is a case of chance recovery. No doubt in Balbir Singh and Ali Mustaffa Abdul Rahman Moosa''s cases (supra), their Lordships of the Apex Court have held that the provisions of Section 50 of the Act are mandatory but at the same time in Balbir Singh''s case (supra) it is further held that the provisions of Section 50 of the Act cannot be invoked in the case of chance recovery. From the statements of Head Constable Nasib Chand (PW2) and Sukhdial Singh (PW1) it is apparent, that on 23.1.1986 early in the morning at about 4.20 a.m. when they were going on patrol duty, they apprehended accused on suspicion and on search being taken of the Jhola being carried by the accused, they found that it contained 2 kgs. 10 gms. of Opium. Hence I find that in the case in hand provisions of Section 50 of the Act cannot be made applicable, as it is a case of chance recovery.

So far as provisions of Section 41 are concerned, I have already held that Section 74 of the Act saves the investigation. Nasib Chand (PW2) has testified that he took out a sample of 5 gms. from the bulk of opium, sealed it in an empty match box sealed the remainder in a tin box and affixed his own seal bearing alphabets ''N''. He also prepared a paper bearing impression of this seal. The seat was handed over to Sukhdial Singh (PW1) ruqa was sent to the police station. FIR was recorded accordingly. After completing the usual investigation, he came back to the police station and deposited the case property duly sealed with MHC Shamshun. Affidavit of this MHC is filed by the prosecution to prove that both the packets duly sealed were deposited in the Malkhana on 23.1.1986.

Nasib Chand (PW2) has further stated that thereafter this sample was sent for analysis. From the report of Chemical Examiner, Ex.PG it becomes apparent that impression of the seal used with alphabet ''N'' was attached with the requisition for analysis which was sent along with the sealed packet of 5 gms. of opium. This sample was sent on 27.1.1986. From the report, it is apparent that the seal on the packet was intact. It tallied with the impression of the seal sent and remained in the safe custody of the Chemical Examiner till 28.5.1986. On analysis, it was found that it contained the opium. Hence there is no possibility of tampering with the sealed packet of the sample of the contraband article. The trial Court has rightly believed the prosecution evidence on these points.

It is further argued that independent witnesses were not joined at the time of alleged search and seizure though they were available as is admitted by Head Constable Nasib Chand (PW2) and head constable Sukhdial Singh (PW1). Hence on this count also, the investigation is vitiated and the accused is entitled to get the benefit of doubt. Even this argument is devoid of any substance. In Balbir Singh''s case (supra), it is held that if at the time of search and seizure independent witnesses are not joined, this only amounts to an irregularity and it is not an illegality to vitiate the investigation. But at the same time, the Court is cautioned to scan the prosecution evidence minutely to arrive at the conclusion whether they are reliable or not. The trial Court was aware of this caution and it has minutely scanned the prosecution evidence and has come to the conclusion and rightly so that the prosecution has proved the guilt of the accused beyond doubt.

About the defence plea no evidence was adduced by the accused and both the prosecution witnesses have denied the same. No help can be rendered to the accused so far as this defence plea is concerned. No further point is pressed.

Hence finding the appeal meritless, it is hereby dismissed. The accusedappellant is directed to surrender to his bail bonds to undergo remaining sentence.