State of Punjab vs Shaminder Singh

S.S. Grewal, J.—This State appeal is directed against the order of Additional Sessions Judge, II, Sangrur dated 2-4-1987 whereby Shaminder Singh, the present respondent was acquitted of charge u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) for recovery of 2 1/2 Kgs of opium from his possession.

In brief facts of the prosecution case relevant for the disposal of this appeal are that on 24-11-1985, S.I. Harpal Singh along with other police officials was on patrol duty and was proceeding from the police station to village Balian on a tempo. On the way as the police party reached near the drain in the area of village Dhandiwal, the respondent met them. On seeing the police party the respondent tried to slip away. On suspicion he was apprehended and from his personal search 2 1/2 Kgs. of opium was recovered from his possession. Sample was drawn. Both the sample and the remaining opium were separately sealed and taken into possession through seizure memo. After completion of the investigation and on receipt of the report of the Chemical Examiner the respondent was challaned, tried and acquitted by trial Court mainly because of non-compliance of the provisions of Sections 41 to 43 and 50 of the Act.

The learned counsel for the parties were heard.

Mr. M. S. Gill, learned Deputy Advocate General, appearing on behalf of the Punjab State submitted that while making search and seizure of contraband opium in this case it was neither obligatory for the Investigating Officer to associate a Gazetted Officer or a Magistrate, nor, non-compliance of procedure relating to search, seizure and arrest embodied in Chapter V (Sections 41 to 58 of the Act) would vitiate the trial. It was further submitted that non-compliance of these provisions may at best amounts to a mere irregularity and not an illegality in following the procedure concerning arrest, seach and seizure of contraband opium. Such an irregularity in the absence of proof of material prejudice to the accused would not either per se vitiate the trial or entitle the accused to acquittal on such procedural technicalities.

Reliance in this respect was placed on Full Bench authority of Orissa High Court in Banka Das, Rambalak Das, Birendra Kumar Behera and Soumitri Behera Vs. State of Orissa, wherein it was observed that in the absence of any stipulation in Section 50(1) of the Act, the concerned official has no duty to inform the person that if he desires he may be brought before the nearest Magistrate or the Gazetted Officer as the case may be. Even if such information has not been given, there is no infraction. The obligation arises only when the person so requires.

The aforecited Full Bench authority in Banka Das''s case was considered by the Full Bench of this court in State of Punjab v. Kulwant Singh, reported as 1994 (1) CLR 198 wherein it was observed as follows:

"The ratio of the decision of the Full Bench of Orissa High Court is of no help in concluding that non-compliance of the provisions of Section 50 of the Act would not itself vitiate the trial or conviction. However, the Full Bench of the Orissa High Court lends support to the view already taken by us that the provisions of Sections 41: 42: 52: 55 and 57 of the Act, though mandatory in nature, but their non-compliance by itself is not sufficient to vitiate the trial unless in the circumstances of the particular case, it has resulted in any prejudice to the accused or miscarriage of justice, or, prejudice to the accused on the facts of a particular case."

It was further held in the aforecited authority "that the provisions of Sections 41: 42: 52: 55 and 57 of the Act are mandatory in the sense that the concerned officials are bound to comply with the same, but their non-compliance per se would not prove fatal to the case unless it has resulted in miscarriage of justice or prejudice to the accused on the facts of a particular case. However, the non-compliance of the provisions of Section 50 of the Act would per se result in vitiating the trial and conviction and it would amount to taking away the valuable and substantive right of the suspected person in establishing his innocence and rendering the recovery of narcotic drugs and psychotropic substances as illegal qua the possession of the accused."

The view expressed by the Full Bench of this Court in Kulwant Singh''s case (supra) is partly in line with the latest authoritative pronouncement of the apex Court in State of Punjab v. Balbir Singh 1994 (1) Cri 753 (P&H) wherein dealing with this aspect of the case it was held that on prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

While dealing with other material aspects the apex Court finally concluded as follows :-

(1) If a police officer without any prior information as contemplated under the provisions of the N. D. P. S. Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the N.D.P.S. Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is riot empowered should inform the empowered officer who should thereafter proceed in accordance with the provisions of the N.D.P.S. Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the N.D.P.S. Act.

(2A) u/s 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for seach is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officer or duly authorised officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the N.D.P.S. Act. If such arrest or search is made under the provisions of the N.D.P.S. Act by any one other than such officers, the same would be illegal.

(2B) u/s 41(2) only the empowered officer can give the authorisation to his sub-ordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention that would affect the prosecution case and vitiate the conviction.

(2C) u/s 42(1) the empowered Officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) u/s 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4A) If a police officer, even if he happens to be an ''empowered'' officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity.

(4B) If an empowered officer or an authorised officer u/s 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information, the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the magistrate would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

In view of the binding nature of precedent of the apex Court, the view expressed by the Orissa High Court concerning the scope of Section 50 of the Act cannot be legally followed and view expressed by the pull Bench of this Court in Kulwant Singh''s Case (supra) can be followed to the extent it is in line and does not run counter to the decision of the apex Court in Balbir Singh''s case (supra).

Faced with this situation it was further submitted by the State counsel on the basis of the authority of the apex Court in H.N. Rishbud and Inder Singh Vs. The State of Delhi, that a defect or illegality in investigation, however, serious, has no direct bearing on the competence or the procedure relating to cognizance or trial. The argument advanced by the learned State counsel is hardly tenable. The authority in H. N. Rishbud''s case (supra) is clearly distinguishable and is not applicable to the case in hand.

It is further submitted that the irregularity, if any, was curable u/s 465 of the Code of Criminal Procedure, 1973 and the order of acquittal passed by the learned trial Court is not of legal order and the same is liable to be set aside. The argument is devoid of any merit. The latest authority of the apex Court in Balbir Singh''s case (supra) directly deals with the mandatory provisions of the Act concerning arrest and seizure of Narcotic and Psychotropic substances whereas the authority in H. N. Rishbud''s case (supra) cited by the learned State Counsel relates to an entirely different case under the provisions of Prevention of Corruption Act, 1947. Objects and provisions of the two Acts relate to different areas of crime. As such the latest view expressed by the apex Court has to be followed.

Recovery of contraband opium in the instant case from the respondent was allegedly effected as far back as 24-11-1985 by S. I. Harpal Singh. The Sub-Inspector of police was not legally authorised to conduct search or seize contraband articles under the Act before the State Government issued notification No. S.O. 33/C.A. 61/85/Ss. 42 and 67/87 dated 3rd September, 1987. It is thus quite obvious that the respondent was searched and contraband opium was recovered under the Act by S. I. Harpal Singh who was neither empowered nor authorised under the Act to search the respondent in order to effect such recovery under the Act.

Apart from that there is no material On the record that after recovery of contraband opium under the Act, S.I. Harpal Singh who, as already discussed, was neither empowered nor authorised under the Act to search the respondent, had sent any information to a police officer who was duly empowered or authorised under the Act to search and conduct recovery of any contraband article.

In view of the lacuna or infirmities referred to above, the impugned order of acquittal passed by the learned trial Court does not suffer from any legal infirmity. There is no merit in this appeal and the same is accordingly dismissed.