State of Punjab vs Thana Singh

A.S. Nehra, J.—This appeal is directed against the judgment dated 9.5.1988 passed by the Additional Sessions Judge, Bhatinda, by which the respondent was acquitted of the charge under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

The prosecution case, in brief, is as under :

On 22.5.1987, a police party headed by Head Constable Gurdev Singh was going from village Dhan Singh Khana towards village Raikhana on partol duty. When the police party reached near the turning to village Dhan Singh Khan, Gurjant Singh PW met them and he was associated with the police party. When the police party reached about one furlong from the trijunction towards village Raikhana, Thana Singh accused was seen coming from the opposite side. On seeing the police party, the accused threw the gunny bag, carried by him on his head and he ran away through the fields. Head Constable Gurdev Singh searched the gunny bag and found it to contain poppy heads. 100 grams out of it, was taken out as sample. The sample and the residue of poppy heads were separately sealed into parcels with the seal of Head Constable Gurdev Singh and taken into possession, vide memo Exhibit PA. Head Constable Gurdev Singh sent ruqa Exhibit PB to Police Station, Kot Fatta, where, on its basis, formal FIR (Exhibit PB/1) was registered by S.I.Mohinder Singh. Head Constable Gurdev Singh prepared roughsite plan and on return to the police station, he produced the case property before S.I. Mohinder Singh who re sealed it with his seal "MS" and deposited it with the Moharrir Head Constable. The sample was sent to the Chemical Examiner, Patiala, who vide his report Exhibit PD, confirmed the same to be poppy heads.

In support of its case, the prosecution examined PW1 Head Constable Gian Singh and PW2 Head Constable Gurdev Singh. The report (Exhibit PD) of the Chemical Examiner, and affidavits, Exhibits PE, PF and PG of MHC Bharpur Singh, Constable Bant Singh and HC Gian Singh respectively, were tendered in evidence.

When examined under section 313 of the Code of Criminal Procedure, the accused denied the allegations against him and pleaded innocence.

The learned counsel for the parties have been heard. On behalf of the State, it has been vehemently argued by the learned Deputy Advocate General, Punjab, that the testimony of PW1 Head Constable Gian Singh and PW2 Head Constable Gurdev Singh coupled with the recovery of 10 Kgs. of poppy heads 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.A. 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 area 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 10 Kgs . of poppy heads was effected from the possession of the respondent on 22.5.1987. 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 of 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 on 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, PW2 Gurdev Singh was not legally empowered to arrest or search the respondent. The poppy heads recovered on this case have 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 non compliance 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 15 of the Act.

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