Sukhpal Singh alias Kuku vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgment/order dated 22.2.1995/23.2.1995 passed by the Additional Sessions Judge (II) Bhiwani whereby appellant has been convicted under section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 Lac and in default of payment of fine to undergo further rigorous imprisonment for one year.

The necessary facts for the disposal of this appeal are that on 4.1.1994, Assistant Sub Inspector Baljit Singh alongwith his police companions was on patrolling duty and present on kacha path near Pipli road railway crossing Loharu. The appellant was sighted while coming from the side of Pipli having one white plastic bag on his head and an attache case in his right hand. On seeing the police party he tried to turn back to whisk away. On suspicion the appellant was detained. Assistant Sub Inspector Baljit Singh expressed his doubt that the appellant might be in possession of some prohibited narcotic drugs and gave a notice in writing Ex. PD to him to the effect that if he so desired he could be searched in the presence of a Gazetted Officer or a Magistrate. The appellant gave a written reply Ex. PE that he wanted his search to be taken before a Gazetted Officer. On a written requisition, Deputy Superintendent of Police Loharu, reached the spot of occurrence alongwith the staff. The attache case was opened and on conducting its search a bag containing 10 kilograms chura post was recovered. A sample of 100 grams of chura post was separated. The sample as well as remaining contents were converted into separate sealed parcels with the seal of SN anD were taken into possession vide recovery memo Ex. PC. On the basis of the ruqa Ex. PF. formal F.I.R. Ex. PF/1 was recorded. Sample parcel was sent to the office of Forensic Science Laboratory, Madhuban. After completing the investigation a chargesheet against the appellant was submitted to the court.

A charge under section 15 of the Act was framed against the appellant to which he pleaded not guilty and claimed trial.

In support of its case the prosecution examined four witnesses. Shri S.M. Sharma (PW1) the Deputy Superintendent of Police, Loharu, in whose presence the attache case held by the appellant is alleged to have been searched and the chura post weighing 10 kilograms was recovered. Sub Inspector Baljit Singh (PW 2) is the Investigating Officer. Const. Chhote Lal (PW 3) is witness of recovery. Assistant Sub Inspector Raghu Nath (PW 4) was posted at Station House Officer, Loharu on 4.1.1994 before whom Assistant Sub inspector Baljit Singh produced the appellant as well as the case property and who after verifying the facts and put his seal on the sample and the residue. Affidavits of M.H.C. Dharam Singh and Constable Suraj Bhan Ex. PA and Ex. PB respectively were tendered in evidence. The evidence of these two witnesses was formal in nature. Ex. P.K. is the report received from the office of the Forensic Science Laboratory, Madhuban which was tendered in evidence.

In his examination under section 313 of the Code of Criminal Procedure, the appellant denied all the allegations of the prosecution and stated that he had been falsely implicated, that no such chura post was recovered from him and that he was lifted by the police from the bus stand Loharu and the chura post was planted on him. He did not produce any evidence in his defence.

On an appraisal of the evidence produced on the record, Additional Sessions Judge, Bhiwani by the impugned judgment held that the appellant was found to be in conscious possession of 10 Kgs of chura post without any licence or permit. With this finding the appellant was convicted and sentenced as stated above. Feeling aggrieved, the appellant has come up in appeal.

I have heard the learned counsel for the parties and have gone through the record of the trial court with their active help.

Mrs. Anju Arora Advocate, learned counsel for the appellant has drawn my attention to a serious flaw in the prosecution case to the effect that the mandatory provisions of Section 50 of the Act were not complied with which is fatal to the prosecution case. The learned counsel has made a reference to the testimony of Assistant Sub Inspector Baljit Singh (PW 2) and Constable Chhote Lal (PW 3) and has argued that neither of these two witnesses has deposed any where that the appellant was informed regarding his right to be searched before a Gazetted Officer or a Magistrate if he so desired. The learned counsel has placed reliance upon a well known judgment of the Apex Court rendered in State of Punjab v. Balbir Singh, 1994(3) SCC 299.

On the other hand Shri P.S. Sullar, learned Assistant Advocate General, Haryana has argued that immediately after the appellant was detained Assistant Sub Inspection Baljit Singh expressed his doubt that the appellant might be in possession of some prohibited narcotic drug and that if the appellant so desired he could be searched before the Gazetted Officer or a Magistrate and that a written notice Ex. PD was given to the appellant. The learned Assistant Advocate General has further argued that the appellant had opted for his search before a Gazetted Officer vide his written reply Ex. PE. Thus it has be argued that provisions of Section 50 of the Act were duly complied with.

I have given my careful thought to the respective arguments advanced at the Bar.

As regards the compliance of Section 50 of the Act the prosecution case is based upon the testimony of Sub Inspector Baljit Singh (PW 2) the Investigating and Searching Officer and Constable Chhote Lal (PW 3) who was member of the police party present at the spot. In his statement on oath Sub Inspector Baljit Singh (PW 2) has deposed as under:

"On seeing the police party, the accused tried to turn back. On suspicion, the accused was apprehended. The accused was asked that you have some contraband and I want to take your search. On this the accused asked that I want to be searched before a gazetted officer. Written notice u/s 50 of the NDPS Act was served upon the accused which is Ex.PD and his reply is Ex.PD/1.

Constable Chhote Lal (PW 3) has stated as under :

"On suspicion, the accused was apprehended. Then the accused was asked that you have some contraband and the police party wants to take your search. Written notice Ex.PD was served upon the accused and the reply is Ex.PE which bears the signatures of the accused. This also bears my signature."

From a bare reading of the testimony of these two witnesses, it is evident that none of them has deposed that the appellant was informed regarding his right to be searched before a Magistrate or a Gazetted Officer, nor any of them has deposed that an offer was given to him that he could be searched either before a Magistrate or a Gazetted Officer. Sub Inspector Baljit Singh (PW 2) has merely deposed that he had told the appellant that he (PW 2) wanted to take the search of the appellant on which the latter told that he wanted to be searched before a Gazetted Officer. Similarly Constable Chhote Lal (PW 3) has deposed that the appellant was told that he had some contraband and the police party wanted to take his search. Thus, none of these two witnesses has stated on oath in their deposition before the court that the appellant was either informed about his right to be searched before a Gazetted Officer or a Magistrate or any such offer was given to him.

The learned Assistant Advocate General, Haryana, has made a reference to the document Ex. PD which contains an offer to the appellant that he was suspected to be in possession of some prohibited narcotic drug and whether he wanted to be searched before a Gazetted Officer or a Magistrate. Then reference is made to Ex. PE which is in the nature of reply given by the appellant to the effect that he wanted to be searched before a Gazetted Officer. On the basis of these two documents the learned Assistant Advocate has argued that this documentary evidence goes to establish the due compliance of Section 50 of the Act.

The aforesaid argument of the learned Assistant Advocate General, Haryana is misconceived and not sustainable in the eyes of law. The substantial evidence is the testimony of Sub Inspector Baljit Singh (PW 2) and Constable Chhote Lal (PW 3) who have appeared in the Court and made their deposition on oath. ExPD and Ex.PE can be said to be contemporaneous record of what happened at the time of search. This record cannot be said to be a substantive piece of evidence. Such a record can be used either for refreshing memory of Sub Inspector Baljit Singh (PW 2) who had prepared the documents or at the most to corroborate the testimony of Sub Inspector Baljit Singh (PW 2) and Constable Chhote Lal (PW 3). As has been remarked by Lord Ellenborough in Henry v. Lee (1810)2 Chitty 124 in an expression which has become a classic phrase in judicial quotation, "it is not memorandum that is the evidence but the recollection of the witness."

The question regarding proof of compliance with the provisions of section 50 of the Act has recently been examined by the Apex Court in Saiyad Mohd. Saiyad Umar Saiyed and others v. The State of Gujarat, 1995(2) RCR(Crl.) 388 : JT 1995(3) SC 489 . While proving the view expressed in Balbir Singh''s case (supra) to the effect that the approving of Sections 50 are mandatory in nature, their Lordships were pleased to state the law as under:

"The fact of seizure thereof after a search has to be proved. When evidence of the search is given all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If no evidence to this effect is given the court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established.

We are unable to share the High Court''s view that in cases under the NDPS Act it is the duty of the court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by Section that he had in fact done so. When the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty bound to conclude that the accused had not had the benefit of the protection that Section 50 affords; that, therefore, his possession of articles which are illicit under the NDPS Act is not established; that the precondition for his having to satisfactorily accounted for such possession has not been met and to acquit the accused."

From a bare perusal of the law laid down by the Apex Court, it is clear that the substantive evidence is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate, and that the said person had given a specific option. If no evidence in this respect is given by the officer conducting the search or the witness present at that time, it cannot be said that the mandatory provisions of Section 50 have been complied with. As already stated, the contemporaneous record Ex. PD and Ex.PF prepared at that time is not substantive piece of evidence and can be utilised for limited purpose of either refreshing memory of the officer who prepared it or to corroborate his testimony and the testimony of the witness who has attested the same. In the present case Sub Inspector Baljit Singh (PW 2) and Constable Chhote Lal (PW 3) have nowhere stated in their deposition before the court that the appellant was apprised of his right to be searched before a Gazetted Officer or a Magistrate and that the latter had opted to be searched before a Gazetted Officer. Therefore, the necessary conclusion is that the provisions of Section 50 of the Act which are mandatory in nature were not complied with in this case before conducting the alleged search. This serious flaw in the prosecution case is in itself fatal to the prosecution as laid down by the Apex Court in the cases referred to above.

For the reasons mentioned above, this appeal is allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge under Section 15 of the Act. The appellant shall be released forthwith if not wanted in any other case.