Raghbir Singh vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is filed against the conviction and sentence recorded by the learned Sessions Judge, Hisar in Session case No. 36 of 15.6.1992 under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (for short ''the Act'').

According to the case of the prosecution, on May 1, 1991 the S.H.O. of Police Station, Jakhal received a secret information that the accused was in possession of opium when the S.H.O. was present near Kudhi head. Then the police party conducted a raid near village Puran Majra. The accused was present with a bag in his hand. Then the accused was told that he has to be searched and whether the accused wanted to be searched by the Sub Inspector or by Gazetted Officer. As the accused wanted to be searched by a Gazetted Officer, a message was flashed to the Assistant Superintendent of Police, Tohana. Then the Assistant Superintendent of Police Sh. Sudhir Chaudhary came to the spot and the search of the bag carried by the accused was made in the presence of the Assistant Supdt. of Police. The search revealed that the bag contained opium weighing 4 kgs. 50 gms. 50 grams was taken as sample. A report was sent by the S.H.O. to the Police Station on the basis of which the FIR was registered. The sample was sent to the Chemical Examiner, Madhuban, Karnal, who opined that the sample is opium. On receipt of the report of the Chemical Examiner, a chargesheet was filed by the police before the court of Judicial Magistrate 1st Class, Tohana who committed the case to the Sessions Judge, Hisar by his order dated 4.6.1992. The learned Sessions Judge, Hisar framed charge against the accused punishable under section 18 of the Act for being in possession of 4 Kg. 50 gins. of opium on May, 1991. The accused pleaded not guilty to the said charge and claimed trial. In order to prove the guilt of the accused, the prosecution examined three witnesses and marked documents. After closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. The accused pleaded that he was implicated falsely as he had filed a writ petition in the High Court to secure the release of his son Gian Singh and brother Piara Singh who were illegally detained by Jakhal Police. In defence, the accused examined two witnesses. On a consideration of the evidence on record, the learned Sessions Judge found that the accused was in possession of 4 Kgs. and 50 gm. of opium which contained meconic acid and morphine etc. and accordingly convicted the accused for the offence under Section 18 of the Act and sentenced the accused to undergo rigorous imprisonment for a period of ten years. Aggrieved by the said conviction and sentence imposed by the learned Sessions Judge the appellant filed the above appeal. The learned counsel for the appellant argued that the provisions of the Act, namely Section 50 have not been complied with and the case has been foisted against the accused and, therefore, the accused is entitled to have an order of acquittal in his favour. It is on the other hand contended by the learned Assistant Advocate General, Haryana that provisions of Section 50 of the Act have been fully complied with and there is no infirmity in the case of the prosecution and the evidence of P.W. 1 to 3 clearly proves the guilt of the accused and there are no grounds warranting interference with the conviction and sentence imposed by the learned Sessions Judge on the accusedappellant.

It is the case of the prosecution that on May 1, 1991 the accused was found to be in possession of opium and, therefore, the accused is guilty of the offence under Section 18 of the Act. P.W. 1 worked as an Assistant Superintendent of Police, Tohana. He deposed that at about 2.30 p.m., he received it wireless message to reach village Puran Majra as the Police Officer incharge suspected a person keeping contraband articles under the Narcotic Drugs & Psychotropic Substances Act and he is required to be searched in his presence. He thereupon took his personal staff in the jeep and reached near the Phirni where he found Badri Parshad SHO and other police personnel and accused Raghbir Singh was also present there. The accused was carrying a bag in his hand. Then he told the accused that they suspected him to carry some contraband and they wanted to carry out his search. Thereupon the bag carried by the accused was searched and 4 kgs 50 gms of opium was recovered wrapped in a wax paper. 50 grams was taken out of it by way of sample. The sample as well as the residue were separately sealed in parcels and the same were sealed with the seal of the S.H.O. and the articles were taken into possession vide Memo Ext. PB. He further deposed that he received the report of the S.H.O. Ext. PC subsequent to the present incident. PW. 2 is the Driver of the jeep of the S.H.O. Police Station Jakhal. He deposed that on 1.5.1991, when they were near Kudani head, one person met them and he talked to the S.H.O. Thereafter, they reached the village Puran Mujra and the accused was present in his Khalian and was also having a bag in his hand. On seeing the police party, he started moving towards the village. Then the S.H.O. gave him a notice Ext.PB that the S.H.O. suspected the accused of keeping in possession the opium. The accused told the Sub Inspector that he would not allow him to search him and a Gazetted Officer be called for that purpose. His reply was reduced to writing Ex.PE. Thereafter, a V.T. message was sent to the Deputy Superintendent of Police who came to the place of apprehension of the accused and the search was carried out of the bag and the accused and it was found to contain 4 kgs. 50 gms. of opium. Out of the same, 50 gms was drawn as a sample and the same was sealed. PW.3 is the S.H.O. He deposed that on 1.5.1991, he was going on patrol duty from Kudani head to Puran Majra side alongwith ASI Pat Ram, Driver Sube Ram and other police employees and when he was about one km. to Puran Majra, he received a secret information that the accused was selling opium in his Pid (Khalian). Then he proceeded towards that place and found that the accused was going towards the village with his bag in his hand. Then he apprehended him and enquired from him whether he wanted to be searched by him or in the presence of Gazetted Officer. He also served a notice on the accused. The accused desired to be searched before a Gazetted Officer. His reply was reduced to writing. Thereafter, he informed the D.S.P. on wireless. Then the Deputy Superintendent of Police came there who carried out the search of the accused and the bag contained 4 kgs. 50 gms. of opium and sample was drawn out of it and the residue was sealed in a plastic canny Ext.P.1. The bag was also taken in possession. Then he sent a Ruqqa Ext. PB for the registration of a case. In his examinationinchief he denied the suggestion that he did not try to join any respectable from the village. He also stated that he does not know whether Ragbir Singh accused had filed any writ petition in the High Court against the S.H.O. Police Station Jakhal and he served in Police Station Jakhal. He denied the suggestion that the Police of Police Station Jakhal planted a false case against the accused. Thus according to the evidence of the prosecution, the accused was found to be in possession of 4 kgs. 50 gms. of opium when the bag carried by him was searched by the Assistant Superintendent of Police on 1.5.1991. I do not see any reason to disbelieve prosecution witnesses. Their evidence is consistent and trustworthy. The learned Sessions Judge rightly placed reliance on their evidence. The learned counsel for the accusedappellant contended that the provisions of Section 50 of the Act have not been complied with. But the evidence clearly shows that the accused was in clear cut words asked whether he wanted to be searched by a gazetted officer and when he wanted to be searched before a gazetted officer, a wireless message was sent to the Deputy Superintendent of Police whereupon PW. 1 reached the spot and search was conducted on the accused. Thus, I am of the opinion that the provisions of Section 50 of the Act had been complied with.

On a careful consideration of the evidence on record, I am of the opinion that the learned Sessions Judge rightly convicted the accused for the offence under Section 18 of the Act. Under Section 18, the sentence of imprisonment for ten years is mandatory. The learned Sessions Judge imposed the sentence of imprisonment prescribed in the Act. I do not find any grounds warranting interference with the sentence imposed. The appeal, therefore, fails and is accordingly dismissed.