Sukhdev Singh vs State of Haryana

R.L. Anand, J. (Oral.)

This appeal has been filed by Shri Sukhdev Singh son of Shri Kartar Singh, agriculturist, resident of village Gurni Kalan, District Mansa, and has been directed against the judgment and order dated 15th September, 1997 vide which the appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (for short `the NDPS Act'') and was sentenced to undergo rigorous imprisonment for a period of 10 years. He was further directed to pay a fine of Rs. 1,00,000/. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for a period of one year more.

The appellant Shri Sukhdev Singh faced the trial on the allegations that on 22nd February, 1994 in the vicinity two kilometres ahead of village Dhangar, he was allegedly found in the possession of opium weighing 500 grams without any licence or permit. The case of the prosecution in the trial Court was that on the date of the recovery Sukhdev Singh Inspector/S.H.O. of Police Station Fatehabad was going from village Dhangar towards village Mohamadpur Rohi along with A.S.I. Mahender Pal Singh and other members of the Police Party and when the Police Party reached at a point two kilometres from village Dhangar at about 5 P.M., the appellant was found coming from the side of village Mohamadpur Rohi. The police party was in a private jeep driven by one Subhash. On seeing the Police Party, the accusedapellant sat on the ground on the pretext of urination. On the basis of suspicion he was apprehended. Incharge of the Police Party told the accused that he wanted to make search of his person and whether the accused would like to give search in the presence of same Gazetted Officer. The accused told the Inspector that he may be taken before a Gazetted Officer for his search. Resultantly, consent memo. (Ex. PC) was prepared, which was handed over and explained to Sukhdev Singh accused, who signed the same in token of correctness and attested by A.S.I. Mahender Pal Singh and Subhash Chand. Thereafter, the appellant was produced before the Gazetted Officer Shri Ashok Kumar Yadav, TehsildarcumExecutive Magistrate, in whose presence the search of the person of the appellant was conducted and from the right dub of the Chadra worn by the appellant, opium wrapped in a wax paper was recovered. On weighment it was found to be 500 grams. 20 grams out of the recovered opium was separated as sample and made into a parcel and sealed. The remaining opium was also made into a sealed parcel by putting it in a separate container. The entire case property, i.e., the parcels of sample and the residue were taken into possession vide recovery memo. Ex. PB. The accusedappellant could not produce any licence or permit for the possession of the opium. Ruqa Exhibit PE was sent to the Police Station Fatehabad. Formal F.I.R. No. 131 dated 22.2.1994 was registered under Section 17 of the N.D.P.S. Act. The Thanedar also prepared the rough site plan (Ex. PG) of the place of occurrence. He also sent special report (Ex. PH) to the higher authorities. The case property was deposited with the Moharrir Head Constable Jai Chand (P.W.1).

The sample of the opium was sent to the office of the Forensic Science Laboratory, Madhuban, who declared the contents of the sample as opium and on the completion of the investigation of the case, the accused was challaned in the Court of the Illaqa Magistrate, who supplied the copies of the documents to the accused and vide commitment order dated 21st December, 1994 committed the case to the Court of Session.

Vide order dated 23rd January, 1995 a formal charge under Section 18 of the NDPS Act was framed against the accused, which was handed over and explained to the accused, to which he pleaded not guilty and claimed trial. In order to prove the charge, the prosecution examined P.W.1 Jai Chand, Head Constable; P.W. 2. S.I. Sheodan Singh; P.W. 3, Shri Ashok Kumar Yadav, Tehsildar; P.W. 4. A.S.I. Mahenderpal Singh; P.W. 5. Inspector Sukhdev Singh and P.W.6 Constable Vijay Pal Singh. The prosecution also tendered into evidence the report of the Director, Forensic Science Laboratory besides the affidavits of formal witnesses and closed its case.

The statement of the accused was recorded under Section 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied all the allegations and stated that he was falsely implicated. However, the accused did not lead any evidence in defence.

Learned trial Court believed the prosecution version and rejected the defence story and convicted and sentenced the appellant in the manner as stated above. Aggrieved by his conviction and sentence, the appellant has filed the present appeal.

I have heard Shri D.S. Bali, Senior Advocate, assisted by Shri D.V. Gupta, Advocate, on behalf of the appellant; and Shri Sanjiv Sheoran, Advocate, who appeared on behalf of the State; and with their assistance have gone through the record of this case.

Present is a case of chance recovery. So far as the possession of the opium is concerned, it has now been well crystallised by the Hon''ble Supreme Court that even in cases of chance recovery, the mandatory provisions of Section 50 of the NDPS Act are supposed to be complied with by the Investigating Officer. As per the prosecution story, the Police Party was going on patrol duty in a jeep, when they suspected the appellant with some incriminating articles.

Section 50 of the NDPS Act lays down :

"(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate."

A reading of the above provision would show that an obligation has been cast upon the seizing officer to give complete two options as contemplated under Section 50 of the NDPS Act. He has to tell to the person to be searched that he had the option of search either in the presence of a Gazetted Officer as mentioned under Section 42 or before a Magistrate. If the person to be searched has not been apprised of his complete right and if only partial offer is given to such person, it will be violation of the provisions of Section 50(1) of the NDPS Act. Any violation of the mandatory provisions would vitiate the trial as well as the recovery.

With the above principle of law, now I will advert to the evidence which has been relied upon by the prosecution. The first documents which were prepared at the spot after the arrest of the appellant are Exhibit PC and Exhibit PD. Exhibit PC is the notice and Exhibit PD is the reply of the appellant. A perusal of these documents would show that only a partial offer was given to the appellant when he was told that he had the right to be searched in the presence of a Gazetted Officer. The Tehsildar of course was the Executive Magistrate but he was not a Gazetted Officer within the provisions of Section 42 of the NDPS Act. Even the ruqa Exhibit PE suffers from this very illegality. The substantive statements on oath made by the Investigating Officer and the corroborative witness also talk of Gazetted Officer. In this view of the matter, this Court is of the considered opinion that there was a partial offer only, which is against the mandatory provisions of Section 50(1) of the NDPS Act. It has been held in Narender Kumar v. State, 1996(1) R.C.R. 451, that partial offer of search does not amount to compliance of mandatory provisions of Section 50. Reliance was placed on State of Punjab v. Balbir Singh, 1994(1) R.C.R. 737.

In this view of the matter, I am of the opinion that the prosecution has not been able to prove the charge against the appellant beyond reasonable doubt. The recovery of the opium becomes a doubtful affair and stands vitiated on account of noncompliance of the provisions of Section 50(1) of the N.D.P.S. Act.

In the light of the above, I accept this appeal, set aside the order of the learned trial Court and acquit the appellant of the charge framed against him. He shall be released forthwith, if not wanted in any other case. Intimation be sent to the jail authorities for the release of the appellant. The case property, however, stands confiscated. The appeal is allowed.