Randhir vs State of Haryana

R.L. Anand, J. (Oral) This is a Criminal Appeal and has been directed against the judgment and order dated

30.7.1988 passed by the court of Additional Sessions Judge, Bhiwani who convicted the appellant under section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lac and in default of payment of fine, he was further sentenced to undergo rigorous imprisonment for two years.

The brief facts of the case are that on 11.2.1988, Sub Inspector Ram Kumar was posted at C.I.A. Staff, Bhiwani. On that day he alongwith police officials was present at bus stand Norangabad in connection with patrolling and excise checking. Appellant came from the side of village Bamla. On seeing the police party he tried to disappear. On the basis of doubt, he was apprehended. The Sub Inspector asked accused whether he wants to be searched by him in the presence of some Gazetted Officer or in the presence of any Magistrate. The appellant offered to be searched by Sub Inspector alone. After giving his search, the Sub Inspector conducted search of the appellant Shri Randhir and from the outer part of the kamri worn by the appellant underneath his shirt and out of the pocket of kamri, a packet wrapped in a piece of wax paper was recovered, which was found having contained opium. The thanedar separated 10 grams of opium and made parcel thereof. The remaining opium was also sealed. On weighment it came to 250 grams. The entire case property was taken into possession vide recovery memo Ex.PA. The appellant could not produce any permit or licence for the possession of the same. Ruqa Ex.PB was sent to the Police Station for registration of the case on the basis of which formal F.I.R. Ex.PB/1 was recorded. The Investigating Officer prepared rough site plan Ex.PC. The appellant was formally arrested and was produced before Inspector C.I.A. Staff who resealed the case property with his own seal bearing inscription DS. The sample was sent to the office of the Chemical Examiner who found the contents of the sample to be that of opium. On completion of the investigation of the case, the accused was challaned in the court of Ilaqa Magistrate who supplied copies of the documents to the accused. Vide commitment order dated 10.6.1988 committed the accused to the court of Sessions. Vide order dated 4.7.1988 appellant was chargesheeted under section 18 of the N.D.P.S. Act on the allegations that on 11.2.1988 in the area of village Norangabad, he kept in his possession 250 grams of opium without any permit or licence and thereby committed an offence punishable under Section 18 of the N.D.P.S. Act. The charge was read over and explained to the accused to which he pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined Head Constable Bharat Singh as PW.1, Sub Inspector Ram Kumar as PW.2, Head Constable Rattan Singh as PW.3 and Constable Balbir Singh as PW.4. Finally the prosecution tendered in evidence statement of the formal witnesses besides report of the Chemical Examiner.

In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant stated that he was innocent and that he had gone to purchase a buffalo but was apprehended by the police and the present case has been planted upon him. In defence, the appellant did not produce any defence.

Relying upon the story of the prosecution, the trial Court convicted and sentenced the appellant in the manner stated above. Feeling aggrieved against his conviction and sentence, the present appeal which I am disposing with the assistance rendered by Shri S.S. Ahlawat, learned counsel appearing on behalf of the appellant and Shri Sanjiv Sheoran, learned counsel appearing on behalf of the State, and with their help have gone through the record.

This appeal succeeds on the short ground that mandatory provisions of Section 50 of the N.D.P.S. Act have not been complied with. Neither it has come in the statement of S.I. Ram Kumar nor in the statement of Head Constable Bharat Singh that the appellant was told of his right that he could get himself searched in the presence of a Gazetted Officer or a Magistrate. So much so, the Investigating Officer did not record the statement of the accused. The relevant statement of Head Constable Bharat Singh is as follows :

"On seeing the police party he retraced his steps. On the basis of suspicion, accused was apprehended. S.I. asked the accused whether he wanted to be searched alone or in the presence of some Gazetted Officer. Accused preferred to be searched by him (S.I.) without any gazetted officer."

The statement of ASI Ram Kumar is as follows :

"On seeing the police party he retraced his steps. On the basis of doubt, accused was apprehended. I asked accused whether he wants to be searched in the presence of any gazetted officer or by me alone. Accused expressed his willingness to be searched by me. Then conducted his search."

Thus it is clear that the appellant was never informed of his right that he can take the assistance of a Magistrate while giving his search. The statement of the appellant was also not recorded when he shedded his valuable right under Section 50 of the N.D.P.S. Act.

In this case no independent witness has been associated when the recovery has been effected from the bus stand which is a most busy place during morning hours.

Since the mandatory provisions of Section 50 of the Act in this case have not been complied with, therefore, I accept this appeal and set aside the judgment and order of the Additional Sessions Judge, Bhiwani and acquit the appellant of the charges framed against him. The case property stands confiscated to the State and shall be destroyed according to law. The appellant is on bail. He stands discharged from the bail bond and surety bonds.