Tarsem alias Sema vs State of Punjab

H.S. Bedi, J. (Oral)

This appeal arises out of the following facts;

On 22nd March, 1986 Sub Inspector Bishan Dass PW2, the Incharge of the Police Post, Mehtiana, Police Station Sadar, Hoshiarpur, along with Head Constable Mohinder Singh, Constables Sukhdev Singh and Baljinder Singh, was on patrol duty when they saw the accused coming from the opposite direction. On seeing the police party he suddenly took a turn and on suspicion was arrested. Sub Inspector Bishan Dass searched the jhola Ex.P.1 that the accused was carrying and it was found to contain 2 Kgs of poppyhusk. A small sample was separated from the main bulk for chemical analysis and on their receipt of the report of the chemical examiner intimating that the sealed article was a narcotic and on the completion of the investigation, the accused was challaned and sent up for trial for an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ''Act'').

In order to connect the accused with the crime, the prosecution examined Head Constable Mohinder Singh as PW 1 and Sub Inspector Bishan Dass as PW 2 and in addition filed the affidavits of the other relevant witnesses. In his statement recorded under Section 313 Cr.P.C. the accused denied the allegations appearing against him and pleaded false implication and also produced in his defence Mota Singh Lambardar as DW 1.

The trial Court came to the conclusion that Sub Inspector Bishan Dass was duly competent to effect the search and the subsequent seizure of the poppy husk; that the evidence of the two witnesses were liable to be believed; that there was no necessity for the investigating agency to have complied with the provisions of Section 50 of the Act as the accused had made no such request at the time of his search, the mere fact that no independent witness had been joined did not cast a suspicion on the prosecution story and the minor improvements made by the two witnesses could be well ignored and having held as above, convicted and sentenced the accused to rigorous imprisonment for 10 years and to the payment of fine of Rs. 1 lac or in default of the payment thereof to further undergo rigorous imprisonment for two years. Hence this appeal.

I have gone through the judgment of the trial court and find that the same is unsustainable on the short ground that there was no attempt to comply with the mandatory provisions of Section 50 of the Act. In State of Punjab v. Balbir Singh, 1994(1) R.C.R. 736 the Supreme Court has clearly held that the provisions of Section 50 of the Act were mandatory in nature and their noncompliance would vitiate the conviction. It was further held that it was for the police officials conducting the search to inform the accused that he had a right to be searched either before a Gazetted Officer or a Magistrate and no responsibility lay on the accused to make a request that he should be so searched and that if such offer was not made by the police officer that would be fatal to the prosecution case. As noted above, the trial court held that there was no necessity of complying with the provisions of Section 50 of the Act as it was for the accused to have made a request in that connection. As is evident, this finding of the trial court is absolutely incorrect in the light of Balbir Singh''s case (supra).

It has further been contented by Mr. Gill, learned AAG, that Balbir Singh''s case (supra) pertained to a search and seizure effected on prior information whereas in the present case the meeting between the accused and the police party was merely a chance encounter. This matter has also been settled by the Supreme Court in Mohinder Kumar v. The State of Panaji, Goa, 1995(2) RCR 599 . wherein it has been held that even in the case of a chance encounter where the accused is apprehended on the basis of his suspicious conduct, the provisions of Section 50 of the Act have to be complied with from that stage onwards. In the case before me today, it is the prosecution case itself that it was the conduct of the accused on turning away on seeing the police party that had aroused the suspicions of the police party. It is therefore, apparent that in the light of the ratio of the judgment of the Supreme Court in Mohinder Kumar''s case (supra), the provisions of Section 50 of the Act had to be complied with from that stage onwards.

For the reasons recorded above, the present appeal succeeds, the conviction and sentence imposed on the accused is set aside and he is acquitted of the charges levelled against him.