Ram Phal vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgment/order dated March 22, 1994, passed by the Additional Sessions Judge, Sonepat, whereby the appellant has been convicted under section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000/, and in default of payment of fine to further undergo rigorous imprisonment for one year.

The facts leading to the prosecution are that on March 30, 1993, at about 6.15 p.m. a police party headed by Inspector Ram Phal, while on patrolling duty, was present in front of the main gate of Senior Secondary Janata School, Ganaur. The appellant was sighted while coming from the side of village Ganaur having a bag on his left shoulder. On a suspicion having arisen, Inspector Ram Phal disclosed to the appellant that the latter was suspected to be in possession of charas and his search was to be conducted, and also required if he wanted to get his personal search conducted in the presence of a gazetted officer. A written notice Exhibit PA was served upon the appellant who opted for his search by the said Inspector and signed Exhibit PA in respect of his said choice. On conducting a search of the bag, it was found to contain 1 Kg. 10 Grams of charas. A sample weighing 50 gms. was separated. The sample as well as the remainder were separately sealed with the seal bearing the impression of ''MS''. Seizure memo. Exhibit PB was prepared. On a ruqaExhibit PC sent to the Police Station, formal FIRExhibit PC/1 came into existence. The case property as well as the accused was produced before the Deputy Superintendent of Police, who after making due inquires, put his seal of initials of ''OP'' on the parcels containing the sample charas and the remaining charas. The sample parcel was sent for chemical examination. After receiving the reportExhibit PX from the Chemical Examiner and completing the investigation, a chargesheet was filed against the appellant.

A charge under section 20(b) of the Act was framed against the appellant to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined 3 witnesses. H.C. Dhanpat Rai (PW1) was a member of the raiding party and was present at the time of the recovery and during the subsequent proceedings conducted on the spot. Inspector Ram Phal (PW 2) is the Investigating Officer. Shri Hardeep Singh (PW 3) is the Deputy Superintendent of Police, before whom the case property and the accused were produced. Affidavit Exhibit PY of Upgrade Constable Hans Raj and affidavitExhibit PZ of Satbir Singh M.H.C. and Exhibit PXreport of the Chemical Examiner were tendered in evidence.

In his examination under section 313 of the Code of Criminal Procedure, the appellant denied all the allegations of the prosecution and pleaded false implication. He did not produce any evidence in defence.

On an appraisal of the prosecution evidence, the Additional Sessions Judge, Sonepat, found the appellant to be guilty of an offence under section 20(b) of the Act, and convicted and sentenced him as stated above. Hence this appeal.

I have heard the learned counsel for the parties and have also perused the record.

Shri R.S. Cheema, Sr. Advocate, learned counsel for the appellant, has argued that Inspector Ram Phal did not comply with the mandatory provisions of Section 50 of the Act which in itself is fatal to the prosecution case. It has been further argued by the learned counsel that admittedly the said Investigating Officer did not make any effort to join independent public persons to witness the alleged search of the appellant which reflects a grave doubt on the genuineness of the socalled recovery. It has also been pointed out by the learned counsel that according to the prosecution case a sample weighing 50 grams was separated and converted into a sealed parcel which was later on sent to the office of the Forensic Science Laboratory for analysis, whereas according to the report of the Forensic Science Laboratory (Exhibit PX) a sample containing approximately 29 gms. greenish brown, solid substance was received in that office. Thus, it has been contended that the substance sent to the office the Forensic Science Laboratory cannot be said to be the same which is alleged to have been recovered from the appellant.

On the other hand Shri V.S. Rana, learned State counsel, has argued that before conducting his search, the appellant was made aware of his right to be searched before a gazetted officer and a written noticeExhibit PA was given to him and his option was duly recorded thereunder. It has also been argued by the learned counsel that no public witness was available at the place where the appellant was intercepted; that nonjoining of a public person to witness the search of the appellant is not fatal to the prosecution case and the conviction of the appellant has been rightly based on the unimpeachable testimony of the police officers. It has been pointed out by the learned Stated counsel that the variation of weight in the sample sent to the office of F.S.L. is engligible and of no effect since the seals on the parcel were found intact and tallied with the specimen seals as per forwarding authority mentioned in the reportExhibit PX itself.

I have considered the respective arguments advanced at the Bar carefully.

I need not reproduce the provisions of Section 50 of the Act. Enough to say that this Section has been enacted to act as a safeguard against vexatious search and unfair dealing and to protect and safeguard the interest of an innocent person. It also provides a weapon to the law enforcement agency against common allegation that the drugs have been planted by these officers. While interpreting this Section in State of Punjab v. Balbir Singh, 1994(1) RCR(Crl.) 737 : JT 1994(2) SC 108 , the apex Court held:

". . . . . In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a gazetted officer or a magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a gazetted officer or a magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right...."

While approving the aforesaid view in Saiyad Mohd. Saiyad Umar Saiyed and others v. The State of Gurjarat, 1995(2) RCR(Crl.) 388 : JT 1995(3) SC 489 , their Lordships of the Supreme Court while holding that the protection under section 50 of the Act to the accused is sacrosanct and cannot be disregarded, made the following observations:

". . . . Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or Magistrate. We endorse the finding in Balbir Singh''s case that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate."

Thus, it becomes clear that there is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted officer or a Magistrate. If this mandatory requirement is not sincerely and faithfully complied with, the violation thereof is fatal to the prosecution.

In the present case, H.C. Dhanpat Rai (PW 1) has deposed that the appellant was told that he was suspected to be in possession of charas and was to be searched and the appellant was appraised of his right to be searched in the presence of a Gazetted Officer. He has further stated that a written noticeExhibit PA to the same effect was served upon the appellant and his reply was recorded thereunder. Similar is the testimony of Inspector Ram Phal (PW 2), the Investigating Officer. According to him also the appellant had made a choice that he could be searched by the Investigating Officer himself. From a bare reading of the testimony of these two witnesses and the noticeExhibit PA, it is evident that there was no proper compliance of the provisions of Section 50 of the Act inasmuch as the appellant was never informed of his right that if he so desired he should be searched before a Gazetted Officer or a Magistrate. Even if it is accepted that the appellant was informed of his right to be searched before a Gazetted Officer, the same does not amount to a due compliance with the provisions of the said Section.

To meet the above situation, the learned State counsel has drawn my attention to a recent judgment of the apex Court rendered in Manohar Lal v. State of Rajasthan, JT 1996(1) SC 480, and has argued that the offer given by the Investigating Officer to the appellant is the due compliance of Section 50 of the Act. In the aforesaid case, their Lordships after reiterating the law laid down in Saiya Mohd. Saiyad Umar Saiyed''s case (supra) held as under:

"The provision only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the officer concerned to have the search made in the presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. It is clear from Section 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer taking the search or in the presence of the nearest available Gazetted Officer or the nearest available Magistrate. The choice of the nearest Gazetted Officer or the nearest Magistrate has to be exercised by the officer making the search and not by the accused."

This judgment does not run contrary to the law laid down by their lordships in Balbir Singh''s case (supra) and Saiyad Mohd. Saiyad Umar Saiyed''s case (supra). In this decision also, their Lordships explicitly pointed out that the provision requires the option to be given to the accused whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate. If such a choice or option is given to an accused, it is for the officer concerned to have the search made in the presence of the nearest Gazetted Officer or the nearest Magistrate, whosoever is conveniently available for the purpose. The prosecution can take the benefit of this decision only after informing the person to be searched in respect of his right to be searched before a Gazetted Officer or a Magistrate. If this requirement is not fulfilled, the prosecution cannot derive any help from this decision. Therefore, I am constrained to hold that Inspector Ram Phal (PW 2) failed to comply with the provisions of Section 50 of the Act before conducting the alleged search of the appellant. This violation of the provisions of Section 50 of the Act is fatal to the prosecution.

The matter may be looked from another angle. Even if it is assumed that there was partial compliance of Section 50 of the Act, it was the bounden duty of Inspector Ram Phal to call for some independent public persons to witness the search of the appellant. Admittedly, the police party was present in front of the main gate of the school of village Ganaur. The police party consisted of one Inspector, 3 Head Constables and one Constable. The appellant was detained at about 6.15 p.m. Once the appellant was detained on the suspicion having arisen, Inspector Ram Phal had the time, opportunity and the means at his hands to procure independent persons from village Ganaur before conducting the search of the appellant. Inspector Ram Phal has admitted in his crossexamination that he did not make any effort to join any such independent public person before conducting the search of the appellant. Even though the statute does not make it obligatory, as a rule of prudence the police officer should carry out the search, if it is possible to secure the presence of respectable witnesses in their presence. The Court will be extremely reluctant to uphold the prosecution case which is solely based on recovery made as a result of search not witnessed by independent and respectable persons unless it was unreasonable and impractical to procure the presence of such witnesses. Since Inspector Ram Phal did not even think of making an effort to join independent person to join the search of the appellant, it creates suspicion as regards the alleged recovery from the possession of the appellant.

The aforesaid suspicion finds affirmation in the fact that according to the prosecution, a sample weighing 50 grams of the contents alleged to have been recovered from the possession of the appellant was sent to the office of Forensic Science Laboratory, Madhuban, whereas the reportExhibit PX prepared by that office goes to show that a sample weighing approximately 29 gms. was received in that office. This variation in the weight of the sample, particularly at a time when the seal after use was handed over to H.C. Dhanpat Rai (PW 1) speak volumes against the prosecution and the only inference is that either the sample was tampered with somewhere or the ample sent to the Forensic Science Laboratory was not the same which is alleged to have been recovered from the appellant.

For the foregoing reasons, I hold that the prosecution has not been able to prove its case against the appellant beyond reasonable doubt. Consequently this appeal succeeds. The conviction and sentence of the appellant are hereby set aside and he is acquitted of the charge under section 20(b) of the Act. The appellant shall be released forthwith, if not wanted in any other case.