Suba Singh vs State of Punjab

S.S. Sudhalkar, J.

The appellant was tried by the learned Sessions Judge, Faridkot for the offence under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the N.D.P.S. Act''). The learned Sessions Judge found him guilty of the offence and convicted him for the same and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac or in default of payment of fine to undergo further rigorous imprisonment for one year. Being aggrieved by the said judgment of conviction and order of sentence, the appellant has come up before this Court in Appeal.

I have heard learned counsel for the appellant and learned Assistant Advocate General, Punjab for the State.

The case of the prosecution is that on 21.4.94, the police party headed by Shri Harcharan Singh Inspector was returning after patrol duty and when they reached in the area of village Dagru near the Semnala, they found the accused (appellant) along with two companions coming from the eastern side of the bank of the Semnala and all of them were having a gunny bag each on their heads. They were apprehended on suspicion. The appellant was apprehended by Kuljit Singh, Sub Inspector while his companions were apprehended by Harcharan Singh and Hardial Singh. Regarding the recoveries from the companions of the appellant separate cases were registered. Harjit Singh, Dy. Superintendent of Police also reached at the spot and the appellant was searched in the presence of the D.S.P. and from his gunny bag 40 kgs of poppy husk was recovered. The appellant could not produce any licence or permit for its possession. Thereafter weighing and other formalities were carried out.

Learned counsel for the appellant has argued that in this case no offer as required under section 50 of the N.D.P.S. Act was made to the appellant. S.I. Kuljit Singh PW5 has deposed that he apprehended the appellant and that regarding recoveries from the companions of the appellant separate cases were registered. He further stated that DSP Harjit Singh had also reached the spot and all the above stated persons including the appellant were searched in the presence of the D.S.P. PW1 Sukha Singh has tendered his affidavit Ex.PA regarding depositing of the case property in the Malkhana and handing it over for onward transmission to the F.S.L. PW2 Gurmit Singh Constable has tendered his affidavit Ex. PW2 regarding receipts of the case property from the MHC and handing it over to the FSL. PW3 ASI Hukam Singh was the SHO of the Police Station concerned at the relevant time before whom the case property was produced. PW4 Swaran Singh ASI has stated that he was with the raiding party and according to him, when he and the other members of the raiding party reached in the area of village Dagru, they found the appellant along with two of his companions carrying gunny bags on their heads coming from the left bank of the canal minor. He states that appellant was apprehended by SI Kuljit Singh and by him while the remaining two accused were appended by Inspector Harcharan Singh and Hardial Singh. The names of the companions of the appellant are Angrej Singh and Gurcharan Singh. He further contends that poppy husk contained in one gunny bag each was recovered from both the companions of the appellant and regarding those recoveries separate cases were registered. He further contends that one gunny bag containing poppy husk was also recovered from the head of the appellant. He further stated in his deposition that DSP Harjit Singh also reached at the spot and SI Kuljit Singh took the personal search of the all the persons (including the appellant) in the presence of the DSP. The gunny bag recovered from the appellant was found containing 40 kgs of poppy husk. His further deposition is regarding the other formalities carried out. None of these witnesses has stated that offer to be searched before a Magistrate or Gazetted Officer was made to the appellant. Even PW6 DSP Harjit Singh, in his deposition, does not say so. In view of the above facts, learned counsel for the appellant has argued that mandatory provisions of section 50 of the NDPS Act have not been complied with. His argument is supported by the evidence mentioned above. This is a case of serious offence which involves stringent punishment and it will not be proper to look into this lapse in a casual manner. The trial Court has held that PW6 Harjit Singh DSP is a Gazetted Officer and, therefore, there was compliance of the provision of section 50 of the NDPS Act. There is no reason shown as to why the appellant was not offered to be searched in the presence of a Gazetted Officer or a Magistrate. On the contrary the presence of DSP Harjit Singh on the spot without any request by the appellant to be searched before a Gazetted Officer makes his presence suspicious. He was not called and he reached the place as if he was a chance witness.

From the prosecution evidence, it is also clear that no independent witness was joined at the time of search. The prosecution has not explain the reasons for the same.

Because of the above infirmities, I am not in a position to uphold the finding of conviction recorded by the trial court. Hence this appeal deserves to be allowed.

As a result, this appeal is accepted and the judgment of conviction and order of sentence recorded by the trial court are set aside and the appellant is acquitted of the offence he was charged with and is ordered to be set at liberty if not required to be in custody in any other case. Fine, if paid, is ordered to be refunded.