Sohan Lal vs State of Punjab

H.S. Bedi, J. (Oral)

This appeal arises out of the following facts :

On 14th February, 1986, Hazura Singh S.I. PW 3 being the S.H.O. of Police Station Tapa, with Daya Singh ASI and certain other police officials as also one Raja Ram held a naka on the bridge of the canal minor in the area of village Pakho. The naka continued past mid night on the night intervening 14/15th February 1986 and at about 4 A.M., the party noticed a truck bearing DLL6344 coming from the side of village Pakho Kalan. The truck was stopped and the police party found that the same was being driven by Devinder Singh and Sewa Singh (both declared proclaimed offenders) whereas Sohan Lal and Bagga Singh accused were sitting by the side of the driver whereas Naresh Kumar (also declared a proclaimed offender) and Sardul Singh accused were sitting on the bags loaded in the truck. Naresh Kumar, however, ran away when the truck was stopped. Hazura Singh SI told the accused that they could be searched in the presence of a Gazetted Officer or a Magistrate, but the accused reposing full confidence in him and volunteered that the search be conducted by the police officer himself. On the search of the truck, 120 bags each containing 42 kgs of poppy husk were recovered. A small sample was separated from the main quantity and the rest of the poppy husk was duly sealed alongwith the items seized from the spot and duly deposited in the malkhana. During the investigation it was found that Man Singh accused was roped in under Section 25 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called ''the Act''). After due investigation, the accused were committed to stand trial.

The trial Court relied upon the evidence of Hazura SinghSI PW 3 as also the report of the Chemical Examiner about identifying the seized article to be a psychotropic substance and came to the conclusion that the case against the accused stood proved. The trial Court also held that the provisions of Section 50 of the Act were not required to be complied with as the meeting of the accused and the police party was not on prior information and for this purpose placed reliance on State of Punjab v. Balbir Singh, 1994(1) RCR 736 ; and that nonproduction of the case property, did not, in any way, adversely affect the outcome of the prosecution case. The Court also observed that the recovery of a large quantity of poppy husk made it difficult to accept that it had been planted on the accused. Having held as above, the trial Court while convicting the accused other than Man Singh under Section 15 of the Act, also convicted Man Singh accused under Section 25 of the Act. Hence this appeal.

It has been argued by Mr. R.S. Ghai, the learned Senior Counsel appearing in support of the appeal that from reading of the First Information Report as also the subsequent proceedings, it was clear that S.I. Hazura Singh was not even aware of the provisions of the Act as the entire investigation and all steps leading almost to the filing of the challan had been taken under the provisions of the Opium Act. He has urged that in this eventuality, the statement of this witness made in the year 1994 after a number of judgments holding as mandatory the provisions of Section 50 of the Act that an offer in terms had been given to the accused, was an afterthought and could not be relied upon.

We have considered this argument and find that it deserves acceptance. It will be clear from the First Information Report as also the subsequent proceedings taken that there was no reference whatsoever to the fact as to whether offer in terms of Section 50 of the Act had been made and the learned counsel appears to be right in arguing that the said police officer was not even aware of its provisions. We are, therefore, of the opinion that there was non compliance with the provisions of Section 50 of the Act. Once this finding has been arrived at, the question now arises as to whether the provisions of the aforesaid section had to be complied with in the present facts. Balbir Singh''s case (supra), which has been relied upon by the trial Court as well, was a case where the seizure had been made on the basis of prior information with the police and it was in that situation, the Supreme Court held that the provisions of Section 50 of the Act had to be complied with. This principle has, however, further been extended to a case of a chance meeting by the Supreme Court itself in Mohinder Kumar v. State of Goa, 1995(2) R.C.R. 599 provided the apprehension of the accused and the subsequent seizure have been made as a result of the suspicious conduct of the accused. A look at the First Information Report would reveal that the suspicions of the police party had been raised on account of the fact that when the truck was stopped, Naresh Kumar one of the absconding accused had run away from the spot and it was in that situation that the search was made. Applying the principles laid down in Mohinder Kumar''s case (supra), an offer in terms of Section 50 of the Act had to be made to the accused before the search. As we have come to the conclusion that no such offer was made, this appeal has to be allowed on this short ground.

There is yet another starting circumstance which has come on record. It appears that the case property had not been produced in Court at the time of trial and the trial Court accepted the explanation that it had been destroyed as it had been lying in the open courtyard of the Police Station. We are of the opinion that this lapse on the part of the Investigating Agency in the circumstances pointed out to us would also be fatal to the prosecution case the more so as in a prosecution under Act, where a stiff minimum sentence of 10 years and a fine of Rs. One Lakh is provided, it is of the utmost importance that the case property should not be allowed to decay.

For the reasons recorded above, the present appeal succeeds and the accusedappellants are acquitted of the charges levelled against them.