Ranbir Singh vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Sirsa on the accusedappellant in Sessions Case No. 133 of 1987 (Sessions Trial No. 83 of 1987) dated 22.2.1989.

According to the case of the prosecution on 4.7.1986, Sub Inspector alongwith Head Constable and other police officials was proceeding from Damdama to Bahiyan on patroling duty. When they reached on the N.G. Canal, the Sub Inspector received the secret information that the accused was in the habit of dealing in opium. When the police party reached the Dhani of the accused, the accused was seen coming out of his house holding a Dolu in his right hand. On seeing the police party, the accused started going back to his house. The Sub Inspector apprehended him and he was told by the Sub Inspector whether he wanted (sic) to search him and the search revealed that the accused was found in possession of 2 Kgs of opium in the Dolu which he was holding in his right hand. The Sub Inspector took out a sample of 5 Gms out of the same and sealed it. Thereafter, he sent a Ruqa to the Police Station for registration of the case. After the completion of the investigation, the accused was chargesheeted for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the `NDPS Act''). On committal, the learned Additional Sessions Judge, Sirsa framed a charge against the accused under the said section.

In order to prove the guilt of the accused, the prosecution examined four witnesses and marked documents. After the closure of the evidence for the prosecution, the accused was examined under Section 313 Cr.P.C. but the accused denied the commission of the offence. In defence, the accused did not adduce any evidence.

On a consideration of the evidence on record, the learned Additional Sessions Judge convicted the accused for the offence under Section 18 of the N.D.P.S. Act and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. one lac.

Aggrieved by the said conviction and sentence, the accused preferred this appeal.

The evidence of PW1 is of formal nature. He recorded the F.I.R. which is marked as Exhibit PA/1 on the basis of the ruqa exhibit PA sent by the Sub Inspector, PW2 filed the chargesheet against the accused in Court. PW3 is the Head Constable who was a member of the patolling party. According to him, Sub Inspector received the secret information that the accused was dealing in opium. When they went to the Dhani of the accused, he was seen coming out of his Kotha with a Dolu in his right hand. Thereupon, the accused was apprehended and the Sub Inspector inquired from him whether he wanted to be searched in the presence of a Gazetted Officer, but the accused replied that he had no objection if the Sub Inspector conducted the search. Thereupon, the accused was searched by the Sub Inspector and 2 Kgs. of opium duly wrapped in a glazed paper was recovered from the possession of the accused. 5 gms of opium was taken out as a sample and put in a small tin and was sealed. It is brought out in his crossexamination that he did not tell in his statement recorded under Section 161 Cr.P.C. that the accused was offered to be searched in the presence of a Gazetted Officer or a Magistrate. PW4 is the Sub Inspector. According to him he received secret information that the accused was dealing in opium and therefore they went to village Dhani to which the accused belonged and on seeing the Police Party, he tried to go inside the house, but he was apprehended. He further stated that he inquired from the accused whether he wanted his person to be searched in the presence of a Gazetted Officer or a Magistrate, but he replied in the negative. Then he (Sub Inspector) searched the accused and found the opium duly wrapped in a vexed paper in the Dolu and the same was recovered. In his crossexamination he stated that did not record the ruqa which formed the basis for registration of the F.I.R. and that he did not record the fact in the Ruqa that he offered the accused whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. He also did not reduce in writing the secret information which he received. Except the testimony of PW3 and PW4, there is nothing on record to show that the accused was offered to be searched by a Gazetted Officer or a Magistrate. There is a clear violation of provisions of Subsection (2) of Section 42 and Section 50 of the N.D.P.S. Act. When the procedure prescribed under the Act is not followed, the search is illegal and, therefore no conviction can be based on such illegal recovery as held by the Supreme court in State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : JT 1999(4) SC 595. It has also been held by the Apex Court in State of Punjab v. Balbir Singh, JT 1994(2) SC 108 : 1994(1) RCR(Crl.) 736 that the provisions of Subsection (2) of Section 42 are mandatory in nature. Thus it is clear from the evidence on record in this case that the provisions of Sub section (2) of Section 42 and Section 50 of the N.D.P.S. Act have been violated. In view of the decisions of the Apex Court referred to above, the conviction and sentence of the accused for the offence under Section 18 of the N.D.P.S. Act cannot be substained.

The appeal is, therefore, allowed and the conviction and sentence imposed on the accusedappellant by the learned Additional Sessions Judge are hereby set aside. The bail bonds of the accused shall stand cancelled.