Surinder Kumar vs State of Haryana

V.S. Aggarwal, J.

This criminal appeal is filed by Surinder Kumar (hereinafter described as the ''appellant'') against the judgment and order of sentence passed by the learned Additional Sessions Judge, Ambala, dated 28th April, 1992 and 30th April, 1992 respectively. By virtue of the impugned judgment and the order of sentence, the learned trial Court held the appellant guilty of the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act) and sentenced the appellant to undergo rigorous imprisonment for 10 years and a fine of Rs. One lac, and in default of payment of fine, the appellant was to undergo further rigorous imprisonment for two years.

The facts of the prosecution case are that on 24th May, 1989 at about 6.10 a.m., Sub Inspector Khushal Singh was present at Platform No. 3, Railway Station, Ambala. He was accompanied by A.S.I. Shiv Kumar, Head Constables Hardev Singh and Yudhvir Singh. While patrolling, they noticed that one train has steamed at the station. The appellant was seen sitting near the widow. On seeing the police party, he alighted from the train.

The manner in which the appellant alighted from the train aroused the suspicion of the members of the raiding party. He was apprehended. Appellant was holding a bag. The Investigating Officer Khushal Singh told the appellant that if he likes, his person can be searched before a Gazetted Officer. A notice in writing was served on the appellant. Appellant spurned the offer. Thereupon, the bag as such was checked.

The bag contained a small tin. It had about 1/2 kilogram of honey. The contents poured in the bottle did not seem to reflect the quantity. It was found that there was a small bottom which had been adjusted by fixing two iron plates. When inside was searched, it led to the recovery of opium wrapped in a wax paper. Contents were weighed and were found to be of 41/2 kgs.

Two samples each of 20 grams were separated and sealed. The other part of the opium was separately sealed with the seal of SKS. Ruqa was sent to the police station and on the basis of that, formal First Information Report was recorded. The officer incharge of the police station, namely, Shiv Kant on being satisfied, affixed the seal on the sample and rest of the property. All these articles were deposited in the malkhana. Later, the samples were sent to the Chemical Examiner. On receipt thereof that it was opium, report was submitted in Court.

The learned trial Court framed a charge for the offence punishable under Section 18 of the Act to which he pleaded not guilty and claimed the trial. On appraisal of the evidence, the learned trial court concluded that statutory provisions of the Act were complied with. The learned trial Court further held that it has been proved by the prosecution beyond all reasonable doubts that the opium was recovered from the possession of the appellant. With these basic findings, the impugned judgment and order was passed.

At the outset, learned counsel for the appellant urged that provisions of subsection (1) to Section 50. of the Act have not been complied with. The same are being reproduced below for the sake of facility :

"50. Conditions under which search of persons shall be conducted. (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."

The controversy as to if the provisions are mandatory or not has been set at rest by the decision of Supreme Court in the State of Punjab v. Balbir Singh, 1994(2) Judgments Today 108 : 1994(1) Recent Criminal Reports 737 . The Supreme Court in this regard gave the following finding :

"On prior information, the empowered officer or authorised officer while acting under Section 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 noncompliance 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."

Therefore, it must be held that provisions are mandatory.

To overcome and state that the said provisions had been complied with, it was urged that the Investigating Officer had stated in unambiguous terms that he had served the notice Exhibit PB and the appellant had refused to be taken before a gazetted officer or a Magistrate. However, on close scrutiny, the said fact is not at all established. Exhibit PB indeed recites that option was given to the appellant that if he likes, his person can be searched before a gazetted officer or a Magistrate. One cannot indeed be swayed in the facts of the present case by the contents of Exhibit PB. Reasons are not far to fetch. In the First Information Report, Exhibit PA/1, which is based on the ruqa that was sent, there is no mention that option was given to the appellant that if he likes his person can be searched before Magistrate. The only reference is with respect to the gazetted officer. When in the first instance, the document did not mention that option was given to the appellant that it he likes his person can be searched before a gazetted officer or Magistrate. One is surprised that words Magistrate appeared in the notice exhibit PB. It had raised a great shadow of doubt about the genuineness of exhibit PB and its authenticity is doubtful.

Besides that with respect to the recovery of opium, A.S.I. Shiv Kumar supported the prosecution case in all its material particulars. For purposes of corroboration, reliance is further being placed on SubInspector Khushal Singh, P.W.4 and Gulshan Kumar.

Strong reliance is being placed on the solitary statement of public witness Gulshan Kumar son of Sohan Lal Kapur. Gulshan Kumar had told the trial Court in his deposition that he was present at the railway station and sells tea on push cart. He added that a bag was recovered from the appellant which contained a tin which had honey but when it was further checked, it contained opium. He did not support the prosecution case in this regard about the exact recovery. According to him, only 450 gms. opium was recovered. It is to be remembered that prosecution case is that 4.5 Kgs. of opium was recovered. Furthermore, the witness admitted that he has no licence for running his business at the railway station. He has not been challenged. It adds support to the arguments of the learned counsel for the appellant that he is a witness at the beck and call of the police. It would be, therefore, difficult to rely on a statement. When such witnesses are introduced, the edifice of the prosecution case falls and becomes doubtful. Therefore, it cannot be held in the peculiar facts of the present case that it is established beyond all reasonable doubts that opium was recovered from the person of appellant.

For these reasons, I accept this appeal and set aside the impugned judgment and order of sentence passed by the learned trial Court. Appellant be set at liberty if not required in any other case.