State of Punjab vs Om Parkash

K.S. Kumaran, J.

Om Parkash, son of Budh Ram, who faced trial before the Addl. Sessions Judge, Faridkot in Sessions Case No. 10 of 3.3.1990 on a charge under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act) was acquitted by the learned Addl. Sessions Judge, aggrieved by which the State of Punjab has come forward with this appeal.

According to the prosecution, ASI Darshan Singh (P.W. 1) along with Head Constable Ajaib Singh (P.W. 2) and other officials of Police Station Sadar, Muktsar, was returning from Ramgarh Chunga, Madrassa, to the police station after patrolling the village Chak Madrassa Ramgarh Chunga on 2.9.1988. When they reached near Sem Nala, accusedOm Parkash was seen coming from the side of Madrassa, and on seeing the police jeep, he immediately sat down towards his left side as if he was urinating. On suspicion, ASIDarshan Singh with the help of the accompanying officials, caught hold of him and enquired him. ASI Darshan Singh informed him that he was to conduct his personal search and asked if he was desirous of having his personal search conducted in the presence of a Magistrate or a gazetted officer. Accused told that he would have the search conducted by ASI Darshan Singh. Accordingly, the statement of Om Parkash was prepared which was attested by the other officials.

Thereafter, ASIDarshan Singh searched him and found opium wrapped in a glazed paper which was recovered from the bag which the accused was holding in his left hand. 10 gms. of opium was taken out as sample and was put in a match box. The remaining opium weighed 990 grams, which was put in a tin box. The sample and the remainder were sealed and both the parcels, together with the bag, were taken into possession under memo. A ruqa was sent to the police station for registering the FIR. During trial, Head Constable Ajaib Singh was examined as P.W. 1 and Darshan Singh, ASI was examined as (P.W. 2). The prosecution also tendered into evidence affidavits of ConstableHarpal Singh and M.H.C.Paramjit Singh and also the report of the Chemical Examiner (Ex. PC) as per which the sample seized was found to be opium.

The accused in his statement under Section 313, Cr.P.C., denied the allegations and pleaded false implication. he did not lead any evidence. Taking into consideration all the materials placed before him, the learned Addl. Sessions Judge gave the accused benefit of doubt and acquitted him.

Both Darshan Singh (P.W. 2), the ASI, and Head Constable Ajaib Singh (P.W. 1) gave evidence before the trial court on the lines of the prosecution case. But, the learned Addl. Sessions Judge acquitted the accused for the violation of the statutory provisions contained in Sections 50, 52 and 57 of the NDPS Act. Darshan Singh, ASI, stated in his evidence that he did not try to join independent witnesses from Ramgarh Chunga which is 11/2 kms. from the place of alleged recovery. He tried to explain that two persons passed by the said spot but when asked, they refused to join investigation. But, he admitted that he did not call for any person either from village Ramgarh Chunga or Madrassa. So, apart from there being no independent witness, the investigating officer (P.W. 2) admittedly did not even ask the driver of the private jeep in which the police party was travelling, to be a witness P.W. 2 did not even know the number of the jeep, or the name of either the driver or the owner of the jeep. Therefore, we see that though, there were chances of joining independent witnesses, at least the driver of the jeep who could have been joined in the investigation, the investigating officer did not choose to do so. Of course, the evidence of the police officials is not to be thrown out on the only ground that they are police officials. But, here is a case where a statutory duty is cast on the investigating officer under Section 50 of the Narcotic Drugs and Psychotropic Substances Act to inform the accused of his right to be searched before either a gazetted officer or a Magistrate. This duty is not to be lightly avoided by the investigating agency, by stating that the investigating officer informed the accused of his right but the accused declined the offer and stated that the investigating officer himself can search him. If that is going to be the case of the investigating agency then they should let in cogent and acceptable evidence and that too of independent witnesses. This is because very valuable and statutory right that is given to the accused is sought to be taken away by this alleged concession by the accused, and also because stringent punishment is imposed upon the accused who is found guilty under the NDPS Act. So, in the present case where the accused is alleged to have subscribed his thumb impression to the memo, by and under which the accused is alleged to have given his consent for being searched by the investigating officer himself, and when it is not attested by independent witnesses, the same cannot be acted upon or taken to be evidence of the accused having agreed to be searched by the investigating officer himself. This is especially so when it is seen that the accused is illiterate which is evident from the fact that he only subscribed his thumb impression to the alleged consent memo.

The investigating officer (P.W. 2) did not state in his evidence that he informed the accused of the grounds of arrest or that he sent intimation to the superior officer about the arrest of the accused. By failing to do so, the investigation agency has failed to comply with the provisions of Sections 52 and 57 of the NDPS Act. Of course, the provisions of both Sections 52 and 57 of the said Act are not mandatory, and the accused will have to establish prejudice to earn acquittal. When the investigating officer does not send a report immediately to the superiors, then the accused loses an opportunity to bring forth before the court the material, namely, the report to be sent by the investigating agency to the superior officer, so that the court can crosscheck and find out whether the allegations in the FIR and the evidence put forth before the Court are true. To that extent there will be prejudice to the accused. But whatever it is, the prosecution has to fail on the sole ground that there was no compliance with the provisions of Section 50 of the Act in view of the Division Bench decision of this Court in Amrit Singh v. State of Haryana, 1990(2) RCR 525 . It was held in that case as follows :

"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, 1989(2) Chandigarh Law Reporter 75 (supra), it has not 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".

So, on this short ground that the provisions of Section 50 of the Act have not been effectively complied with, the prosecution has to fail. The prosecution cannot, by simply producing a memo, that too alleged to have been got from an illiterate person, and without associating an independent witness, be heard to say that the accused reposed confidence in the investigating agency and agreed to be searched by the investigating officer. So, we find no ground to interfere with the judgment of the trial court.

Appeal is accordingly dismissed.