Teja Singh vs State of Punjab

V.S. Aggarwal, J.

This is an appeal filed by Teja Singh son of Lakhbir Singh (hereinafter described as ''the appellant'') directed against the judgment and the order of sentence dated 2.8.1995 passed by the learned Sessions Judge, Sangrur. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter described as ''the Act'') and sentenced the appellant to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for one year.

The prosecution case set up is that on the night intervening 11/12.9.1993 a police party of police station Dhuri held a picket on the Canal Bridge in the area of Ranchna. At about 12.30 midnight a Maruti car was noticed coming from the seat of the village. It did not bear any number plate. The appellant was driving the vehicle. Sub Inspector Gurbax Singh gave the signal and the appellant stopped the car. Four bags were noticed in the car.

Sub Inspector Gurbax Singh suspected the bags to be containing certain contraband material. He flashed a message. In pursuance thereto Surjit Singh, Deputy Superintendent of Police came to the spot. The bag was searched in presence of the Deputy Superintendent of Police and it was found to be containing poppy husk. Two samples weighing 250 grams each were taken from each of the bag separately. The residue in each bag was weighed and was found to be 35 Kilograms. All the samples were converted into different parcels. They were sealed with the seal of ''GS''. Similarly the bags of poppy husk were separately sealed.

The parcels and the packets of samples were taken into possession vide recovery memo. These were attested by all the witnesses namely HC Satnam Singh, HC Malkiat Singh and DSP Surjit Singh. The seal after use was given to HC Satnam Singh. Ruqa was sent to the police station on the basis of which formal First Information Report was recorded. Rough site plan was prepared and the appellant was arrested. At the police station the parcels were deposited in the Malkhana. Later the samples were sent to the Chemical Examiner at Chandigarh. On receipt of the report that contents were poppy husk, the challan was presented.

The learned trial court framed a charge against the appellant for the offence punishable under Section 15 of the Act to which the appellant pleaded not guilty and claimed trial.

In support of its case the prosecution examined three witnesses pertaining to the recovery of poppy husk and other proceedings during investigation at the spot. They were comprised of HC Satnam Singh PW1, SI Gurbax Singh PW2 and DSP Surjit Singh PW3. Besides that affidavits MHC Pritpal Singh and Constable Kartar Singh were tendered alongwith the report of Chemical Examiner.

The appellant was examined in terms of Section 313 Code of Criminal Procedure. The entire prosecution evidence was put to the appellant. He denied recovery of poppy husk from his possession. The precise defence was that nothing was recovered from him. He was involved in a false case. The police detained him since June, 1993. His wife made a complaint to the senior police officers. Thereafter he was falsely implicated.

In defence the appellant tendered the receipts of telegrams Exs. DA to DK, copy of the application Ex.DL, copies of the telegrams Exs. DM and DN besides the judgment Ex. DO.

The learned trial court on appraisal of the evidence concluded that it has been established that recovery of poppy husk was effected from the legal possession of the appellant. The argument that provisions of Section 50 of the Act have not been complied with, were repelled. With these findings the learned trial court passed the impugned judgment and the order of sentence. Hence the present appeal.

Learned counsel for the appellant urged that there is no satisfactory evidence about recovery of poppy husk from the possession of the appellant and further pressed that there has been noncompliance of the provisions of Section 50 of the Act. In answer to that the learned State counsel insisted that the Deputy Superintendent of Police who was a Gazetted Officer was present at the time of search and it was compliance of Section 50(1) of the Act. He also argued to substantiate the same argument that it was a sudden recovery of poppy husk. Therefore, there was no need to give contemplate notice under subsection (1) of Section 50 of the Act.

The controversy is not the subject matter of any dispute. The Supreme Court in the case of State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : 1994(2) JT 108 (SC) considered the scope of Section 50(1) of the Act. It was held that provisions are mandatory. The Supreme Court went on to hold that it gives a valuable right to the accused that if he likes his person be searched in presence of a Gazetted Officer or a Magistrate.

The plea as advanced by the learned counsel for the State that it was a sudden recovery came up for consideration before the Supreme Court in the case of Mohinder Kumar v. State, 1995(2) RCR 599 . A similar argument was advanced that it was a case of sudden recovery. The Supreme Court held that from the stage there was reason to believe that appellant was in custody of narcotic drugs, he should have proceeded in accordance with the provisions of the Act. The police officer should have been informed from the stage that if he likes his person can be searched before a Gazetted Officer or a Magistrate. The following were the pertinent findings arrived at by the Supreme Court:

"In the instant case, the facts show that he accidentally reached the house while on patrolling duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party, he would perhaps not have had occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion he went there and effected the search, seizure and arrest. It was, therefore, not on any prior information but he purely accidentally stumbled upon the offending articles and not being the empowered persons, on coming to know about the accused persons being in custody of the offering articles, he sent for the panchas and on their arrival drew up the panchnama. In the circumstances, from the stage he had reason to believe that the accused persons were in custody of narcotic drugs and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the matter in of the Act.

He also did not adhere to the provisions of section 50 of the Act in that he did not inform the person to be searched that if he would like to be taken to a Gazetted Officer or a Magistrate, a requirement which has been held to be mandatory. In Balbir Singh''s case, it has been further stated that the provisions of Sections 52 and 57 of the Act, which deal with the steps to be taken by the officer after making arrest or seizure are mandatory in character. In that view of the matter, the learned counsel for the State was not able to show for want of material on record, that the mandatory requirements pointed out above had been adhered to. The accused is, therefore, entitled to be acquitted."

In the present case in hand no such offer had been given to the appellant that if he likes his person can be searched before a Gazetted Officer or a Magistrate. Mere presence of the Gazetted Officer by itself will not over come the said difficulty. The same view prevailed with the Division Bench decision of this Court in Criminal Appeal No. 180DB of 1993 Kulwant Singh etc. v. Assistant Collector Customs decided on 7.12.1995. Similar question was urged that a Gazetted Officer was in the raiding party and it was returned with the following words:

"The purpose behind the section appears to be to avoid miscarriage of justice because a gazetted officer belonging to the department which is effecting a seizure may have a bias in favour of the department whereas no such bias can be attributed to a Magistrate. The two judgments cited by Mr. Ghai fully support his case as in these matters the seizure had been effected in the presence of a gazetted officer belonging to the department and two different High Courts held that notwithstanding the fact that there was a gazetted officer in the raiding party, the offer to be searched before a Magistrate had to be still given in terms of Section 50 of the Act. We are clearly of the opinion that the judgments aforesaid have laid down the correct interpretation of the provisions of Section 50 of the Act."

In that event learned counsel for the State urged that it was not recovered from the person and therefore, the provisions of Section 50 of the Act are not to be attracted. What might have been the subjected matter of discussion, gets the answer from the decision in the case of Kulwant Singh (supra) where this Court gave the following findings :

"We have considered this argument as well and find that it lacks merit. In Amarjit Singh and another v. State, 1995(2) RCR 578 , a Division Bench of the Delhi High Court, relying upon the judgment of the Supreme Court in Ali Mustaffa Abdul Rehman Moosa v. State of Kerala, 1994(3) RCR 595 , repelled a similar argument by holding that even if the recovery was effected not from the person of the accused but from his possession, the provisions of Section 50 nevertheless would have to be complied with and the words "search any person" appearing in section 50 would have to be construed as being applicable to a search made of any building, conveyance or place. This will be further evident when it is noticed that a search that is envisaged under Section 50 of the Act, is to be effected in terms of Section 41 to 43 of the Act and Sections 41 and 42 of the Act clearly envisage search and seizure from a building, conveyance or place in addition to the person of the accused."

In face of the aforesaid it is clear that mandatory provisions of section 50(1) of the Act cannot be held to have complied with. A valuable right was lost to the appellant. It, therefore, becomes unnecessary to consider other aspects of the matter. The appellant is entitled to acquittal.

For these reasons, the judgment of the learned trial court cannot be sustained. While accepting the appeal, it is set aside. The appellant is given the benefit of doubt. He be set at liberty if not required in any other case.