State of Haryana vs Harkh Chand

S.S. Rathor, J.

ASI Dayanand (PW4) was present at the platform of railway station, Rewari, for checking in his official capacity as Head Constable in CIA, Rewari, on June 29, 1987. At about 8.00 a.m., a train came from Bawal side and the accused alighted from a compartment of the train on the said platform. On suspicion, he was apprehended and on search of the bag, which was in his possession one kilogram of opium was recovered. Fifty grams of opium was taken out for preparing a sample. Remaining opium weighing 950 grams was also sealed in a parcel. Sample and the residue opium were taken into possession vide recovery memo Ex. PE, attested by the police constables. Ruqqa Ex. PA/2 was sent to the police station, on the basis of which formal FIR Ex. PA was recorded by MHC Sumer Singh. Rough site plan Ex. PF of the place of recovery was prepared at the spot. After completion of investigation and on receipt of the Chemical Examiner''s report, the accused was made to face trial before the trial Court. The trial Court framed a charge under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The accused pleaded not guilty to the charge and claimed trial.

To prove the factum of arrest of the accused and recovery of one kilogram of opium from his possession the prosecution examined two official witnesses, namely, ASI Dayanand (PW4) and constable Rajinder Singh (PW3). Two affidavits of the official witnesses Ex. PB and PC were also tendered into evidence to prove the link evidence, besides tendering the report of the Chemical Examiner Ex. PD. Similarly, SI Baljit Singh (PW1) and ASI Sumer Singh (PW2) are formal witnesses. When examined under section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances against him and pleaded false implication.

On apprciative of the evidence, produced by the prosecution, the trial Court acquitted the accused on the ground that the investigating officer was not duly authorised to arrest and search the accused in the absence of a valid notification authorising him with these powers under the Act. In support of this view, the trial Court placed reliance on a judgment reported as Karam Singh v. State of Punjab, 1987(1) Recent Criminal Reports 598 : 1987(2) CLR 240. Besides this, on merits also, the trial Court doubted the prosecution story in view of the fact that no independent witness was joined nor any effort was made to that effect, particularly when the accused was arrested after alighting down on a platform on the arrival of a train.

Feeling aggrieved against the order of acquittal dated May 13, 1988, State filed appeal in this Court and leave to appeal was granted by a Division Bench of this Court vide order dated November 28, 1988. The appeal is being disposed of by this order.

Mr. D.S. Bishnoi, D.A.G. Haryana, has vehemently argued that Karam Singh''s case (supra) relied upon by the trial Court is no more a valid law as that judgment has been set aside by the Supreme Court vide its order dated August 9, 1988, rendered in Criminal Appeal No. 416/81 and as such the order of acquittal passed by the trial Court be set aside, this appeal be accepted and the accused be convicted.

Though the judgment in Karam Singh''s case (supra) has been set aside by the Supreme Court and the case has been remanded back for fresh decision on merits and the said case has not been finally decided by this Court, yet it is no ground to convert the order of acquittal into the order of conviction, particularly in the facts and circumstances of this case. The trial Court was to follow the then prevalent view of this Court as reported in Karam Singh''s case (supra) and as such it is suffice to say that the trial Court did not commit any illegality.

There is another legal infirmity in the prosecution case. A perusal of the evidence shows that the investigating officer did not care to comply with the provisions of law as contained in Section 50 of the Act. A Division Bench of this Court in a case reported as Amrit Singh v. State of Haryana, 1990(2) Recent Criminal Reports 525, has held that a person about to be searched must be informed of his right under Section 50 of the Act, to be searched in the presence of a Magistrate or a gazetted officer of the nearest place. Violation of this provision was opined to be fatal to the prosecution case. It has also been observed that such offer should be made as far as possible in the presence of two independent and respectable witnesses of the locality and if the investigating officer fails to do so, the onus would be on the prosecution to prove that association of such witness was not possible in the given facts of the particular case. While interpreting the provisions of Section 50 of the Act, the court has laid emphasis on compliance of these provisions in the following words :

"In dealing with the provisions of Section 50 of the Act it cannot, be observed that it would be rendering them nugatory if the safeguards provided thereby to the person apprehended, to be searched in the presence of a gazetted officer, or magistrate, can be brushed aside on merely the bald statement of a police officer, that such offer was declined by him. As is well known, the legislature has always been somewhat vary of accepting statements made to the police as would be apparent from the provisions of Section 162 of the Code of Criminal Procedure, whereby statements made by an accused to the police, in the course of investigation, are made admissible and if such statement is a confession, it is also hit by Section 25 of the Evidence Act. The provisions of Section 50 of the Act have thus to be construed in this context. To give meaning and content to the clear legislative intent underlying the safeguards provided by Section 50 of the Act, cogent and reliable evidence and not merely the statement of a police officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a gazetted officer or magistrate, but he chose to decline this offer. In State of Himachal Pradesh v. Sudarshan Kumar, 1989(2) R.C.R.(Criminal) 317 : 1989(2) Chandigarh Law Reporter 240, it has no doubt been suggested that such offer should be made before two reliable and independent witnesses, but with respect, it would be appropriate and more in consonance with the interests of justice that as a rule of general practice, the person apprehended should be taken before a gazetted officer or Magistrate and searched in his presence. The stringent minimum punishment prescribed by the ACt clearly renders much a course imperative. Search otherwise than before a gazetted officer of Magistrate should, therefore, be the exception and that too for sound and confining reasons founded upon reliable material on record, the onus of showing that the person to be searched declined such option being upon the prosecution."

The observations of this Court in Amrit Singh''s case (supra) are fully applicable to the facts and circumstances of the present case.

The prosecution is otherwise infirm and doubtful. Admittedly, as observed by the trial Court and burned out from the record, the accused was arrested when he aligned from the train having arrived at 8.00 p.m. It is very strange that no independent witness was available to witness the arrest the accused and seizure of contraband from his possession at such a public place. The investigating officer had tried to coin a make believe story that the person asked to join the investigation in fact refused to become witnesses. This statement in the court is nothing, but an afterthought improvement to remove inherent lacuna in the prosecution story. Under the facts and circumstances of the case, at least the investigating officer, who was posted at the railway station itself could procure the witnesses from the railway employees and other shopkeepers and hawkers available at the platform. In fact, it is evident that no effort was made by him to join any person, otherwise the same would have found mention in the recovery memo Ex. PE and ruqqa Ex. PA/2. Even there is no mention of such a fact in the police case diary. Under these circumstances, it would be highly unsafe to place reliance on the interested and tainted evidence of the official witnesses.

In view of the observations made above, no interference in the order of the trial Court, acquitting the accused, is called for by this Court in the appeal. Accordingly, the prosecution having miserably failed to prove the offence against the accused, State appeal is ordered to be dismissed.