Pritam Singh vs State of Haryana

M.L. Singhal, J.

Sessions Judge, Sirsa vide order dated 1.5.1987 convicted Pritam Singh accused (appellant) under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as NDPS Act) and sentenced him to undergo R.I. for 10 years and to pay fine of Rs. 1 lac, in default of payment of fine to undergo further R.I. for two years.

Pritam Singh has knocked the door of this court through this appeal challenging his conviction and sentence.

Prosecution story, in brief, is that on 16.3.1986. SI Mange Ram, In charge, Police Post Chautala was present on the passage leading to village Ratanpura in connection with patrolling along with the HC Ravi Dutt and constables Rai Sahab and Mehtab Singh. Pritam Singh accused was spotted coming at a distance of about half kilometre from the side of village Ratanpura. At the sight of Police party, Paritam Singh accused turned back and started walking swiftly. This conduct on the part of Pritam Singh accused aroused suspicion in the mind of SI Mange Ram who apprehended him and found opium, wrapped in a glazed paper, in the left dub of the pyjama worn by him. Opium weighed 200 grams. Out of the recovered opium, 10 grams was taken out as sample. Sample opium was made into a parcel. Remaining opium was also made into a parcel. Both the parcels were sealed by SI Mange Ram with seal impression ''MRS''. Both the sealed parcels were taken into possession vide memo Ex.PD. Visual site plan Ex.PE was prepared at the spot with correct marginal notes. Ruqa Ex.PC was sent to the police station on the basis of which formal FIR Ex.PC/1 was recorded at PS Sadar Dabwali. On return to the police station, SI Mange Ram deposited both the sealed parcels with MHC Satbir Singh. Sample was sent to the Chemical examiner for chemical examination. Chemical examiner found, vide report Ex.PF, that the contents were opium containing Morphine and Meconic Acid. After investigation, accused was challaned under Section 18 of the NDPS Act. Case was committed to the court of Session by Sub Divisional Judicial Magistrate, Dabwali vide order dated 21.11.1986. Pritam Singh accused was charged under Section 18 of the NDPS Act by Sessions Judge, Sirsa. He pleaded not guilty to the charge and claimed trial. At the conclusion of the trial, Sessions Judge, Sirsa found the charge proved against the accused, convicted and sentenced him as aforesaid.

NDPS Act, 1985 came in force on 14.11.1985. According to the prosecution, this recovery took place on 16.3.1986. This case ought to have been investigated as if it were a case under the NDPS Act, 1985. This case ought not have been investigated as if it were a case under the Opium Act. Prior to 14.11.1985, recovery of contraband opium was an offence under the Opium Act triable by Judicial Magistrate of the Ist Class. On or after 14.11.1985, recovery of contraband opium became an offence under Section 18 of the NDPS Act, 1985, triable by a special court who shall be Sessions Judge or Additional Sessions Judge. There was, thus a different forum for trial so far as offence under Section 9 of the Opium Act was concerned. There is a different forum for trial created by the NDPS Act, 1985 so far as the offence under this Act is concerned, where the possession of contraband opium was punishable with three years imprisonment and fine under the Opium Act. Possession of contraband opium is an of offence punishable with 10 years imprisonment and fine of Rs. 1 lac in the minimum under Section 18 of the NDPS Act.

In the Opium Act, there were no special safeguards provided to the accused whereas some special safeguards have been provided to the accused under NDPS Act which are intended to obviate false implication. Section 50 of the Act is mandatory and it enumerates the conditions under which search of persons shall be conducted.

In this case, the investigating officer did not advert to the provisions of Sections 50, 52, 55 and 57 of this Act at all. In fact, he did not advert to any of the provisions of this Act at all. It would bear repetition that he investigated the case if it were a case under the Opium Act.

Provisions of Section 50 of the NDPS Act are mandatory. In State of Punjab v. Balbir Singh, 1994(1) RCR 737, their Lordships of the Hon''ble Supreme Court observed that the provisions of Section 50 of this Act are mandatory and the noncompliance thereof will vitiate the trial. At the same time, it was observed by their Lordships that where a police officer acting under the Criminal Procedure Code comes across a person and on search recovers a narcotic drug, question of complying with section 50 would not arise.

In Mohinder Kumar v. Panaji Goa, 1995(2) RCR 599 , their Lordships of the Hon''ble Supreme Court observed that when the conduct of the accused raises suspicion, from the stage he has reason to believe that the accused person is in custody of narcotic drug, he is under an obligation to proceed further in the matter in accordance with the provisions of the Act. In State of Punjab v. Balbir Singh''s case (supra), it was observed by their Lordships of the Hon''ble Supreme Court that the provisions of Sections 52 and 57 of the NDPS Act, which deal with the steps to be taken by the officer after making arrest or the seizure, are mandatory in character. In this case, after the accused had been apprehended on suspicion, it became mandatory on the part of SI Mange Ram to proceed to comply with the provisions of Sections 50, 52 and 57 of the Act.

Legislature provided 10 years imprisonment and fine of Rs. 1 lac in the minimum for possession of contraband opium, charas etc. under this Act. While providing this stringent punishment, the legislature provided certain safeguards to obviate false implication. Legislature intended the compliance of those safeguards so as to assure fair investigation to the accused.

It is cardinal principle of criminal jurisprudence that "graver the offence, stricter the proof". In this case, strict proof as to the possession of contraband opium by the accused has not been adhered to by the prosecution.

HC Ravi Dutt PW2 stated that the accused was handcuffed at the spot. SI Mange Ram PW3 stated that the accused was tied with a parna. Place of recovery is a thoroughfare. SI Mange Ram and HC Ravi Dutt remained at the place of recovery for about 31/2 hours. It is not believable that during that period of 31/2 hours, no one passed by the side of the recovery. Some independent witness could have been joined to witness this step or that step during the investigation of the case. If he had been joined, he could have stated that no bag was found lying in the bus in between two seats and when nobody claimed that bag, the same was planted on the accused, or else he would not have supported this defence version. Nonjoining of independent witness in the circumstances of the case would impinge upon its genuineness. Aforesaid discrepancy is of minor character. Such minor discrepancy will assume importance when the case rests on the testimony of police officials where there is total noncompliance with the mandatory provisions of the aforesaid Act.

For the reasons given above, this criminal appeal is accepted and the appellant is acquitted of the charge framed against him. Fine, if paid, shall be refunded to him.