State of Haryana vs Nihala

S.D. Bajaj, J.

Around 5.15 P.M. on June 24, 1986 while standing near Bus Stand, Fatehbad, district Hissar of Haryana State A.S.I. Prehlad Singh recovered from inside the cloth bag (Jhola) carried by Nihala Bishnoi accused in his right hand 5 kgs 10 grams of opium wrapped in a glazed paper.

On being charged with the commission of offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for it, accused Nihala pleaded `not guilty'' thereto and claimed to be tried.

Vide its impugned judgment dated January 4, 1988 learned trial court acquitted the accused for non compliance by the Investigating agency of the mandatory provisions of section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and section 100(4) of the Criminal Procedure Code. Feeling aggrieved therefrom the State of Haryana has filed Criminal Appeal No. 212DBA of 1988 in this Court.

We have heard Shri D.S. Bishnoi, DAG Haryana for the appellant State, Shri K.S. Keer, Advocate for the respondent and have perused the relevant material on record very carefully.

Relevant section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 reads :

"50. Conditions under which search of persons shall be conducted

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub section(1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female."

Interpreting it in Hakam Singh v. Union Territory, Chandigarh, 1988(2) Chandigarh Law Reporter 75; State of Himachal Pradesh v. Sudarshan Kumar @ Kala, 1989 (1) Chandigarh Law Reporter 240 and Amrit singh v. State of Haryana, Criminal Appeal No. 513DB of 1987 decided on September 27, 1989 their lordships observed :

"The most glaring and serious flaw, however, in the prosecution case, is with regard to the manner of the search of the appellant Amrit Singh, in the context of the provisions of Section 50 of the Act. A reading thereof would show that if any person to be searched so requires, he has to be taken to a gazetted officer or to the nearest Magistrate and then searched in his presence. According to both the PW1 Sub Inspector Narpat singh and PW2 Sub Inspector Joginder Singh, such option was given to the appellant, but was declined by him. In other words, this safeguard provided by Section 50 of the Act is said to have been waived by the appellant and all we have to prove this is the word of two police officers.

The provisions of Section 50 of the Act are mandatory in terms and it also stands so settled by judicial precedents, one of which is provided by the judgment of this Court in Hakam Singh v. Union Territory, 1988 (2) Chandigarh Law Reporter 75. Reference may herealso made to the judgment of the Division Bench of the High Court of Himachal Pradesh in State of Himachal Pradesh v. Sudarshan Kumar, 1989(1) Chandigarh Law Reporter 240 where it was held that the 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. Violation of this provision, it was held, would per se be fatal to the prosecution case. Further, it was observed that such offer, should as far as practical be made in the presence of two independent and respectable witnesses of the locality and if the designate officer fails to do so, the onus would be on the prosecution to prove that association of such witnesses was not possible on the facts and circumstance of a particular case.

In dealing with the provisions of section 50 of the Act it cannot but he observed that it would be rendering them negatory if the safeguard 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 wary 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 inadmissible 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 safeguard 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 Sudarshan Kumar''s case (Supra) 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 such a course imperative. Search otherwise than before a gazetted officer or magistrate should, therefore, be the exception and that too for sound and convincing reasons founded upon reliable material on record. The onus of showing that the person to be searched declined such option being upon the prosecution.

Seen in this light, there can be no escape from the conclusion that violation of the provisions of section 50 of the Act, in the case of the appellant Amrit Singh, stands writ large."

Similarly sub section (4) of section 100 of the Criminal Procedure Code reads :

"(4) Before making a search under ;this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do."

It will be seen that both the witnesses to the apprehension, search, and recovery of the opium from the appellant Nihala are police officials.

The law is, of course, well settled that the testimony of a witness ;is not to be doubted or looked upon with suspicion merely because he happens to be a police official, but, it is, at the same time, a very well recognized rule of caution adopted by the courts to look for corroboration to the testimony of such witnesses by independent witnesses, particularly when the time, place and circumstances are such that independent witnesses are easily available. In the present case, as mentioned earlier the place of apprehension and search of the appellant was the bus stand. Admittedly, there were number of persons present there at that time. It is simply incredible that independent people collected there declined to be joined as search witnesses. Failure of the investigating agency to make the search in the presence of two independent witnesses of the locality also renders the prosecution case against the accused doubtful. Learned trial court thus rightly acquitted the accused. Appeal filed by the State is wholly without merit and is consequently dismissed.