Skattar Singh vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Skattar Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Ambala dated 14.12.1994. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1995 (hereinafter described as ''the Act''). By the subsequent order of sentence of the same date, the appellant was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac. In default of payment of fine he was to undergo further rigorous imprisonment for one year.

The relevant facts alleged by the prosecution are that on 16.9.1993 SI Khushal Singh accompanied by Head Constable Ved Parkash and some other Police officials were present at Platform No. 3, Railway Station, Jagadhari. At about 5.10 p.m. Super Fast train came from Saharanpur and stopped at the platform. SI Khushal Singh and other police officials entered the compartment so as to effect the checking. It was noticed that the appellant was getting down from the other side of the compartment in suspicious circumstances. This aroused the suspicion to Khushal Singh Sub Inspector. The appellant was followed and stopped. He was holding a bag in his hand. In the meantime ASI Ram Kishan of Railway Protection Force also came there.

SI Khushal Singh suspected that appellant was carrying certain contraband articles. He requested Suraj Parkash, Deputy Superintendent of Police, G.R.P Headquarters, Ambala to reach the spot. He reached Jagadhari after sometime. In the presence of Deputy Superintendent of Police, the bag of the appellant was searched. It was found that there was a piece of cloth in the bag. It was opened. There was opium inside the polythene bag. The contents were weighed and found to be 1400 grams. Two samples weighing 20 grams each were taken. The samples and the remaining opium were converted into two separate parcels and sealed with the seal of ''KS''. Seal after use was given to ASI Ram Kishan. The packets were taken into possession vide a recovery memo. The said memo was signed by Ram Kishan, Ved Parkash and Suraj Parkash. Ruqa was sent to the police station on the basis of which formal first information report was recorded.

The appellant alongwith the recovered articles were brought to police station, G.R.P. Ambala. They were produced before the officerincharge of that police station. The officerincharge of the police station verified the facts and affixed the seal of ''ML''. Thereafter the articles were deposited in the Malkhana. The respective sample was sent and report received was that it was opium. On these facts the report under Section 173 of the Code of Criminal Procedure was submitted.

The learned trial court on appraisal of the evidence held that it has been proved beyond all reasonable doubt that appellant was in possession of opium. The defence version of the appellant was that he was travelling in Howrah train from Saharanpur to Amritsar and that three police officials in civil uniform came to the compartment. A lady was travelling in the said compartment. She was having a bag and some luggage. Police officials came to her seat between Saharanpur and Jagadhari and told her that they would search her luggage. Police officials were under the influence of liquor. The lady refused and they misbehaved with her. The appellant objected and thereupon was falsely implicated. Daljit singh DW 1 in this regard was produced. The defence version was rejected. With these findings, the impugned judgment and the order of sentence were passed.

Suraj Parkash Kalra PW1 is Deputy Superintendent of Police, G.R.P. Headquarters, Ambala Cantt. He told the court as PW1 that when he reached Jagadhari, the appellant had been stopped. In his presence the bag was opened and it contained a chadar. In that a polythene packet was wrapped containing opium. ASI Ram Kishan PW2 is the other witness examined and he made a statement that SI had told the appellant that it was suspected that he was having some intoxicant in the bag. He was made to sit on the platform alongwith the bag. A message was sent and after the Deputy Superintendent of Police came, the recovery was effected. The version of SI Khushal Singh PW4 in his own words is as under :

"On seeing the police party accused got perplexed. I got suspicious. I told the accused that his bag was to be searched in the presence of Gazetted Officer and he was made to sit on the platform. I informed the DSP on telephone and the DSP reached there.

In the presence of DSP, Ram Kishan ASI searched the bag of accused."

It is apparent from aforesaid that while in the presence of DSP, no offer was given that if the appellant likes his person can be searched before a Gazetted Officer. It is alleged to have been given before he arrived. The Investigating Officer Khushal Singh''s statement does not indicate that appellant was told that he is suspected to be in possession of certain contraband material or that if he likes his person can be searched before a Gazetted Officer. He simply made a statement that appellant was told that his bag is to be searched in the presence of a gazetted officer. He was not told of the suspicion and of the right of the appellant that if he likes he can be searched before a gazetted officer or a Magistrate.

This right contemplated under Section 50(1) of the Act has been held to be a valuable right and provisions referred to mandatory. Such person must be informed that if he likes his person can be searched before a gazetted officer or a Magistrate. The Supreme Court in the case of State of Punjab v. Balbir Singh, 1994(2) Recent Criminal Reports 736 : JT 1994 (2) SC 108 held:

"One prior information, the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provision of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to noncompliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact."

In the subsequent decision rendered by the Supreme Court in the case of Saiyad Mohd. Saiyad Umar Saiyed & Ors. v. State of Gujarat, 1995(2) Recent Criminal Reports 388 : JT 1995(3) SC 489 , it was further concluded that officer must inform the person his right to be searched in the presence of a gazetted officer or a Magistrate. There is no room for presuming otherwise. In paragraph 9the Supreme Court concluded as under :

"Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Section 114 illustration (e) of the Indian Evidence Act, 1872. By reason of Section 114 a court "may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case." It may presume "(e) that judicial and official acts have been regularly performed." There is no room for such presumption because the possession of illicit articles under the N.D.P.S. Act has to be satisfactorily established before the court."

In the present case no notice in writing had been given informing the appellant of the suspicion and about his right to insist that his person can be searched before a gazetted officer or a magistrate. The Investigating Officer simply told the appellant that a gazetted officer would be making the search. There was no occasion thus for the appellant to exercise his right because he was never informed of the suspicion by the Investigating Officer. A prejudice is caused to the appellant. Therefore, the search must be held to be not valid nor in accordance with the provisions of the Act.

For these reasons, while setting aside the judgment and the order of sentence the appeal is accepted. The appellant is held entitled to an acquittal giving him the benefit of doubt. He be released if not required in any other case.