State of Punjab vs Kundan Singh

A. S. Nehra, J.

This appeal as directed against the judgment dated 25.4.1988 passed by the Additional Sessions Judge, Ferozepore, by which the respondent was acquitted of the charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

The prosecution case, as unfolded by Head Constable Balbir Singh (PW 1), is as under :

On 26.3.1986, Head Constable Balbir Singh (PW1) along with Constable Baldev Singh PW2) and other police officials, was on patrol duty and, in the area of village Karahewal, the accused was apprehended on the basis of suspicion and his personal search led to the recovery of 400 grams of contraband opium wrapped in a glazed paper from the right dab of his chadar, out of which 10 grams was taken out as sample and the remaining opium was put in tin Exhibit P1 and the sample and the tin Exhibit P1 were separately sealed with the seal bearing impression BS and taken into possession, vide memo Exhibit PA. The seal, after use, was given to Constable Baldev Singh (PW2). The Investigating Officer sent ruqa Exhibit PB to the police station, on the basis of which formal FIR (Exhibit PB/1) was recorded by S.H.O. Bhupinder Singh. He also prepared rough site plan (Exhibit PC) of the place of recovery and arrested the accused.

On his return to the police station, Head Constable Balbir Singh (PW1) deposited the case property and the sample with seals intact with Moharrir Head Constable Prem Singh. On analysis, the sample was found to be of opium, by the Chemical Examiner, Bathinda, vide his report Exhibit PD.

At the trial, the prosecution examined PW1 Head Constable Balbir Singh who is the Investigating Officer of the case and who unfolded the prosecution version, as narrated above. He is supported by PW2 Constable Baldev Singh, witness of recovery on all material particulars. The report (Exhibits PD) of the Chemical Examiner and affidavits, Exhibits PE and PF, of Moharrir Head Constable Prem Singh and constable Jagmel Singh respectively, were tendered in evidence.

When examined under Section 313 of the Code of Criminal Procedure, the accused denied the prosecution version and pleaded innocence.

The learned counsel for the appellant vehemently argued that the testimony of PW1 Head Constable Balbir Singh and PW2 Constable Baldev Singh coupled with the recovery of 400 grams of opium is sufficient to prove the case of the prosecution against the respondent. The argument is devoid of any merit.

Notification No. S.O.33/C.61/85/Ss. 42 and 67/87 dated 3.9.1987 was issued by the Punjab State in pursuance of the provisions of subsection (1) of Section 42 and Section 67 of the Act, empowering the officers of and above the rank of Assistant Sub Inspector of Police to exercise the powers and perform the duties specified in Sections 42 and 67 of the Act within the areas of their respective jurisdiction. The State counsel has not been able to show that any such notification was issued prior to 3.9.1987, whereas the alleged recovery of 400 grams of opium was effected from the possession of the respondent on 26.3.1986. At that point of time, police officers of the rank of Assistant Sub Inspector or Sub Inspector had not been legally empowered to exercise the powers and perform the duties concerning seizure of drugs or substances and materials used in the manufacture thereof under Section 42 or Section 67 of the Act. This is a serious lacuna which goes to the root of the prosecution case. Under Section 41(2) of the Act, only a police officer empowered in this behalf by the State Government by general or special order or an officer subordinate to him but superior in rank of Sepoy or a constable duly authorized by such an officer may arrest or search a person on having reason to believe that that person has committed an offence under Chapter IV of the Act. Section 42 of the Act empowers any such officer who has been so empowered in this behalf by a general or special order of the State Government to enter and search any building, conveyance or place, seize any drug or substance and all materials used in the manufacture thereof and arrest any person without warrant or authorization. Similarly, Section 43 of the Act empowers seizure and arrest in public places. It is thus quite patent that in the instant case, Investigating Officer Balbir Singh (PW1) was not legally empowered to arrest or search the respondent. The opium recovered in this case has also not been seized or secured in the manner provided for. From the facts and circumstances of the present case referred to above, it is quite apparent that material prejudice has been caused to the respondent on account of noncompliance of the aforesaid provisions of the Act, which are meant for protecting the liberty of an individual citizen against the highhandedness of an overzealous police officer. The learned trial Court has thus rightly acquitted the respondent of the charge under Section 18 of the Act.

For the foregoing reasons, we do not find any merit in this appeal and the same is hereby dismissed.