State of Haryana vs Karnail Singh

Sarojnei Saksena, J.—Petitioner''s learned counsel contends that on 1-12-1995 respondent was apprehended in the area of Jalbera bridge District Kurukshetra. Option was given to the respondent to be searched either before a Gazetted Officer or Magistrate. Since he opted to be searched before a Gazetted Officer, he was produced before the Deputy Superintendent of Police, Pehowa and in his presence, personal search of the respondent was taken. Respondent was found in possession of 15 Kgs. of poppy husk. After recovery of this contraband, consequent investigation was conducted and after receiving the opinion of the Public Analyst, charge-sheet was filed against the respondent in the Court.

The Additional Sessions Judge, Kurukshetra summoned the accused and after hearing the arguments, discharged the respondent vide impugned order dated 15-11-1996.

The learned counsel submits that the order is against law and facts as the trial Court has failed to appreciate the documents produced by the prosecution; no opportunity was given to adduce documentary or oral evidence; the prosecution should have been given an opportunity to prove due compliance of the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Hence, the impugned order has resulted in grave miscarriage of justice.

From the perusal of the impugned order, it is evident that after hearing arguments, learned Additional Sessions Judge, Kurukshetra, Mr. S.S. Lamba has discharged the accused holding that there is non-compliance of Section 50 of the Act. After perusing the ruqa as well as notice, he arrived at the conclusion that the Investigating Officer on his own has not given any option to the accused of being searched, it is only the accused who himself has opted that he should be searched before the Gazetted Officer. On this fact alone, he held that the trial would be an exercise in futility as there is non-compliance of Section 50 of the Act and no presumption can be drawn against the accused for the commission of the said offence.

In State of Himachal Pradesh Vs. Shri Pirthi Chand and another, the Apex Court has considered such a case where the accused was discharged on the basis of non-compliance of provisions of Section 50 of the Act. The Apex Court has held :-

The evidence collected in a search in violation of law docs not become inadmissible in evidence under the Evidence Act. The consequence would be that evidence discovered would be to prove unlawful possession of the contraband under the Act. It is founded in the Panchnama to seize the contraband from the possession of the suspect/ accused. Though the search may be illegal but the evidence collected, i.e.. Panchanama etc., nonetheless would be admissible at the trial. At the stage of filing charge-sheet it cannot be said that there is no evidence and the Magistrate or the Sessions Judge would be committing an illegality by discharging the accused on the ground that Section 50 or other provisions have not been complied with. At the trial an opportunity would be available to the prosecution to prove that the search was conducted in accordance with law. Even if search is found to be in violation of law, what weight should be given to the evidence collected is yet another question to be gone into. under these circumstances, the Sessions Judge-was not justified in discharging the accused after filing of the charge-sheet holding the mandatory requirements of Section 50 had not been complied with.

In this judgment, the Apex Court has considered its earlier judgment rendered in Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, on which the lower Court has placed reliance.

Thus, in view of the above legal proposition it is obvious that the trial Court has fallen into an error in discharging the accused on the ground of alleged non-compliance of the mandatory provisions of Section 50 of the Act without even affording an opportunity to the prosecution to adduce evidence. Consequently, the impugned order is hereby quashed. The Additional Sessions Judge, Kurukshetra, is hereby directed to hold the trial in accordance with law.