State of Punjab vs Bant Singh

M.L. Singhal, J.

This is appeal against acquittal by the State of Punjab recorded by Additional Sessions Judge, Bhatinda vide order dated 7.3.90 acquitting Bant Singh respondent of the charge under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act") framed against him in case FIR No. 74 dated 10.10.88 of PS Dyalpura district Bhatinda (Sessions Case No. 44 dated 19.5.89).

Facts :

On 10.10.88, ASI Udik Chand of PS Dyalpura along with Head Constable Harcharan Singh, Constable Dhanna Singh and other officials of the police and C.R.P.F. laid naka near village Rajgarh on the main road (Bhadaur Slabatpura) At about 1 PM, tractor trolley bearing number PJI 8765 being driven by Bant Singh petitioner came from Bhadaur side. Signal was raised for stopping the tractor trolley by ASI Udik Chand as he felt suspicious about the contents thereof. Tractor trolley was accordingly stopped by Bant Singh. At the outset, ASI Udik Chand told Bant Singh that he would search the tractor trolley and that if he wanted he could be taken to some gazetted officer for the search of the tractor trolley. Thereupon, Bant Singh replied that he had absolute faith in his integrity and fair play and that he could go ahead and search tractor trolley by himself without taking him to any Gazetted Officer. ASI Udik Chand searched the tractor trolley and recovered 40 gunny bags containing poppy husk lying in the trolley. Each gunny bag was found to contain 45 kilograms of poppy husk. 100 grams of poppy husk each was taken out of each of the recovered gunny bags as sample. Those samples were made into sealed parcels. Gunny bags P1 to P40 were also made into sealed parcels. All the parcels containing poppy husk were taken into possession vide Ex.PA attested by HC Harcharan Singh and constable Dhanna Singh PWs. Ruqa Ex.PB was sent to the police station on the basis of which formal FIR Ex.PB/1 was recorded at PS Dyalpura. Rough site plan was prepared at the spot which is Ex.PC. On return to the police station ASI Udik Chand deposited all the sealed parcels containing poppy husk with seals intact with MHC Gurnaib Singh. Samples containing poppy husk were sent to the chemical examiner for chemical examination. The chemical examiner reported vide report Ex.PD that the samples were containing poppy heads. After investigation, accused was challaned under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Shri B.S. Teji, Additional Sessions Judge, Bhatinda charged the accused under section 15 of the Act. Accused pleaded not guilty to the charge and claimed trial.

On the conclusion of the trial, learned Additional Sessions Judge acquitted him vide order dated 7.3.90. State of Punjab has challenged the acquittal of Bant Singh recorded by Additional Sessions Judge, Bhatinda through this Crl. Appeal No. 318DBA of 1991.

We have heard the learned Deputy Advocate General for the State of Punjab and have gone through the record.

In this case, there has been no compliance with the provisions of the Act. Section 50 of the Act lays down as follows :

"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, 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 subsection (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."

In this case, according to ASI Udik Chand, accused was told that if he wanted, he could be taken to a Gazetted Officer for the search of the tractor trolley. If the legislature has laid down that a particular thing should be done in this particular manner, the intention of the legislature is that thing should be done in this manner alone and in no other manner. In our opinion, ASI Udik Chand should have told the accused that if he wanted, he could be taken to a gazetted officer or a Magistrate for search of the tractor trolley. Offer made was thus a partial offer and hence not in tune with the provisions of Section 50 of the Act. Provisions of section 50 of the Act are mandatory inasmuch as if the accused says that he should be taken to a gazetted officer or a Magistrate for search and he is so taken, the possibility of false implication will be considerably obviated. If the accused is still falsely implicated, he can take up that plea before the Magistrate or the gazetted officer before whom he is taken for search and that plea will be available to the court for appreciation. Provisions of section 55 and 57 of the Act have also not been complied with. Sections 55 and 57 are reproduced hereunder :

"55. Police to take charge of articles seized and delivered. An Officerin charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officerincharge of the police station."

"57. Report of arrest and seizure. Whenever any person makes any arrest or seizure under this Act, he shall, within fortyeight hours next after such arrest or seizure, make a full report of the particulars of such arrest or seizure to his immediate superior official."

A bare reading of section 50 of the Act shows that there is requirement enjoined upon the arresting officer to take the accused to the nearest gazetted officer of any of the departments mentioned in section 42 or to the nearest Magistrate. The option to be searched before the gazetted officer or before the Magistrate is to be given by the arresting officer to the accused and after that option is given, it is his choice whether to opt for a gazetted officer or a Magistrate. The requirement of law is that such an option must be given. If such an option is not given, there is noncompliance with the mandatory provisions of section 50. In the Act, the legislature has provided stringent punishment to the person in possession of opium, poppy husk, etc. While providing stringent punishment to the person in possession of opium, poppy husk, etc., the legislature was aware that there might be false implication at the hands of some unscrupulous police officials etc. and to obviate such false implication, the legislature in its anxiety provided certain safeguards to the accused which are embodied in sections 50, 55 and 57 of the Act. Noncompliance with these provisions will render the prosecution ineffective.

Section 55 enjoins on an officerincharge of a police station to take charge of and keep in safe custody all articles seized under this Act. In this case, there is no evidence that ASI Udik Chand on return to the police station produced all the sealed parcels containing poppy husk to the SHO, police station Dyalpura who affixed his own seal thereon alongside the seal of ASI Udik Chand or he drew samples in his presence and sealed them with his seal in the police station. In this case, the assurance which the legislature has given against false implication has been rendered nugatory by ASI Udik Chand.

For the reasons given above, the State appeal fails and is dismissed.