Sham Lal vs State of Haryana

P.K. Jain, J.—This appeal is directed against the judgment/order dated 22-12-1994 passed by the Additional Sessions Judges, Ambala whereby the appellant has been convicted u/s 20 of the Narcotic Drugs and Psycho-tropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for ten years and also to pay fine of Rs. 1 lac and in default of payment of fine to undergo further imprisonment for two years.

The facts necessary for the disposal of this appeal are that on 18-2-1993 when A.S.I. Hari Pal of C.I.A. staff Panchkula alongwith three constables was present on patrolling duty in the market, he received a secret information that a person having charas in his possession was coming from the side of Bhainsa Tibba in search of a customer. In the meantime one boy was sighted while coming from that side. On the pointing out by the secret informer the said boy was overpowered, who on enquiry disclosed his name as Sham Lal son of Mansa Ram. D.S.P. Bishan Singh happened to reach there by chance. The appellant was produced before the said D.S.P. and the secret information was also disclosed to him. On a direction given, by the D.S.P. A.S.I. Hari Pal conducted the search of the appellant. From a polythene bag found underneath the shirt charas weighing 500 grams was recovered. 50 grams of the contents were separated by way of a sample. The charas and the remaining contents were converted into two separate parcels sealed with the seal of the said D.S.P. and A.S.I. Hari Pal. Recovery memo was prepared at the spot. Ruqa Ex. PA was sent to the Police Station on the basis of which formal F.I.R. Ex.PA/1 was recorded. Case property was deposited in the malkhana. Sample parcel was sent to the office of the Forensic Science Laboratory, Madhuban. On the receipt of the report Ex.PC and the completion of the investigation a charge-sheet u/s 20 of the Act was filed in the Court.

A charge u/s 20 of the Act was framed against the appellant which he denied and claimed trial.

In support of its case, the prosecution examined five witnesses. Hans Raj (PW 3), A.S.I. Hari Pal (PW-4) and D.S.P. Bishan Singh (PW-5) are the witnesses of the alleged search and recovery of charas from the appellant. S.I. Raj Kurnar (PW-1) had recorded formal F.I.R. of this case on the basis of the ruqa Ex. PA. Inspector Shiv Kant Dubey (PW-2) had prepared the charge-sheet filed in the Court.

In his examination u/s 313 of the Code of Criminal Procedure the appellant denied all the allegations of the prosecution and pleaded false implication.

On an appraisal of the evidence produced before him, the Additional Sessions Judge found the appellant to be guilty for an offence u/s 20 of the Act and convicted and sentenced him as stated above. Feeling aggrieved the accused-convict has filed the present appeal through the Superintendent, Central Jail, Ambala. Shri Vikas Chatrath Advocate has been appointed by the Court as amicus curiae to assist this Court in the disposal of this appeal on behalf of the appellant.

I have heard the learned counsel for the parties and have gone through the record.

Although Shri Vikas Chatrath Advocate learned counsel for the appellant has assailed the impugned order of conviction on several grounds it insufficient to note and discuss the main argument regarding the non-compliance of Section 50 of the Act, which strikes at, the roots of the ''prosecution case. The learned counsel has taken me through the record of the case and-has pointed out mat as per the First Information Reports, A.S.I. Hari Pal had a secret information that a boy was coming having charas in his possession and that boy was overpowered and detained on the pointing out by the secret informer. It has been argued by the learned counsel that after the detention of the appellant, he was never informed by A.S.I. Hari Pal or even D.S.P. Bishan Singh who happened to reach there by chance that the police had the secret information that he had charas in his possession and if he so desired, he could be taken either before a Magistrate or a Gazetted Officer for conducting his search. It has been urged by the learned counsel that Section 50 of the Act enjoins upon the detaining and searching officer to inform the accused about his such right given by Section 50 of the Act and violation thereof is fatal to the prosecution case. In support of this argument, the learned counsel has placed reliance on a well known judgment of the apex Court rendered in State of Punjab Vs. Balbir Singh, .

On the other hand Shri K.S. Malik, Advocate the learned counsel for the State of Haryana has argued that D.S.P. Bishan Singh himself a Gazetted Officer was present at the spot, it was on his direction and in his presence that the search of the appellant was conducted by A.S.I. Hari Pal. It has been thus argued that once the search has been conducted in the presence of a Gazetted Officer, the provisions of Section 50 of the Act have been substantially complied with.

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 Vs. Balbir Singh, , 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 credit worthiness 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 Saiyad and Others Vs. State of Gujarat, , their lordships of the Supreme Court while holding that the protecting u/s 50 of the Act to the accused is sacrosanct and cannot be disregarded, made the following observations:-

Finding a person to be in possession of articles which are illicit under the provisions of NDPS Act has, as we have said, the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishment which can extend to 20 years rigorous imprisonment and a fine of Rupees two lakhs or more. It is necessary, therefore, that Courts dealing with offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the concerned officer that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of this right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with.

It was clearly held by their Lordships that if the provisions of Section 50 of the Act have not been complied with, as stated above, the necessary conclusion would be that the prosecution has not been able, to prove that the accused was in possession of the offending article. 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 complied with, the violation thereof is fatal to the prosecution.

In the present case A.S.I. Hari Pal had the secret information that a boy having charas in his possession was coming and that boy the appellant was apprehended on the pointing out of the secret informer. From a bare perusal of the First Information Report Ex.PA/1 and the testimony of Hans Raj (PW-3), A.S.I. Hari Pal (PW-4) and DSP Bishan Singh (PW-5) it is evident that the appellant was never informed regarding the secret information nor he was apprised of his right to be searched before a Magistrate or a Gazetted Officer. No explanation has been given by any of these witnesses as to why not this mandatory requirement of Section 50 was complied with. The trial Court fell in error in observing that since the search was conducted in the presence of DSP., a Gazetted Officer, the provisions of Section 50 stood complied with.

For the foregoing reasons, this appeal is accepted. The conviction and sentence of the appellant are hereby set aside and he is acquitted of the charge u/s 20 of the Act. The appellant shall he released forthwith if not wanted in any other case.