Full Judgment Text
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CASE NO.:
Appeal (crl.) 35 of 2000
PETITIONER:
GURBAX SINGH
Vs.
RESPONDENT:
STATE OF HARYANA
DATE OF JUDGMENT: 06/02/2001
BENCH:
M.B. Shah & K.G. Balakrishnan.
JUDGMENT:
Shah, J.
L...I...T.......T.......T.......T.......T.......T.......T..J
Aggrieved by the judgment and order dated 8th December,
1995 passed by the High Court of Punjab and Haryana in
Criminal Appeal No. 449-SB of 1986 confirming the judgment
and order passed by the Additional Sessions Judge, Karnal
dated 6.5.1986 convicting the appellant for the offence
punishable under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to
as the N.D.P.S. Act) and sentencing him to suffer
rigorous imprisonment for 10 years and a fine of Rs.One lac,
in default of payment of fine further rigorous imprisonment
for 5 years, the appellant has preferred this appeal.
The accused was charged under Section 15 of the N.D.P.S.
Act. For proving the same, prosecution has examined P.W.2.
Ishwar Singh, SI who on 12th January 1986 at about 5.25 p.m.
was present on platform No. 1 of Railway Station, Karnal
for checking smuggling and other anti-social elements. At
about 5.25 p.m. Kalka passenger train arrived at Karnal
from the side of Panipat and halted at platform No. 1. It
is his say that when he was checking a second class
compartment, the appellant who was sitting in the
compartment became panicky and left the train from the door
towards the side of engine carrying a katta (gunny bag) on
his left shoulder. On suspicion, he was nabbed in presence
of witness and it was found that he was carrying poppy straw
weighing 7 k.g. in a polythene bag of white colour. After
separating 100 gms by way of sample, sample and the residue
were separately sealed in two separate parcels in presence
of witness. The seal which was affixed on parcels was
handed over to the witness (PW1) Harbans Lal. He has stated
that the case property was deposited with MHC on the same
day. He has also stated that on the personal search of the
accused, second class railway ticket was recovered. In
cross-examination, it is his say that he intercepted the
accused outside the compartment of platform No. 1. At that
time, Harbans Lal was present at the railway station to see
off his relatives. He offered himself to become witness to
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the recovery. He has also deposed that seal used for
sealing the case property remained with Harbans Lal for ten
days. It is his say that he had fixed only one seal made of
brass bearing I.S. on the gunny bag and also on the sample.
He admitted that seal of the police station is different
from the seal of the Investigating Officer and he has not
affixed the seal of police station on the case property as
also on the sample at the time of delivery to M.H.C. He has
also admitted that he was not maintaining any record of
information sent to Circle Inspector of the Police
Headquarter, G.R.P. It is his say that he had
telephonically informed his superior officer about the
seizure and its quantity. He has denied the suggestion that
accused who was a rikshaw puller was falsely implicated in
the case. He has also denied the suggestion that accused
asked to be searched in presence of Magistrate or other
superior officer.
Prosecution has also examined P.W. 1 Harbans Lal, a
panch witness. It is his say that on the date of incident
he was at the railway station to see off his sister and
brother in law. At that time, he noticed the accused
alighting from the train on seeing the police. Therefore,
accused was nabbed by the police in his presence. The
police found that the accused was carrying poppy straw
placed in polythene bag which on weighment was found to be 7
k.g. The police took sample of 100 grams. The recovery
memo was prepared in his presence which he had attested. In
cross- examination, he has stated that before searching the
contents of gunny bag, the police had not offered itself for
search to the accused. It is his say that seal affixed on
the case property was made of wood (as against the say of
the Investigating Officer that it was a brass seal). The
seal was kept with him for 10 days. He has also admitted
that he had appeared as a prosecution witness in one excise
case and that he was having business of sale of tea near
Tonga Stand outside the railway station for the last 15
years. It is his say that he had not earlier seen the
ground poppy husk and the police had informed him that the
substance recovered from the accused was ground poppy husk.
Learned counsel for the appellant submitted that the
Investigating Officer has not followed the procedure
prescribed under Section 50 of the Act of informing the
accused whether search should be carried out in presence of
Gazetted Officer or Magistrate. As against this, learned
counsel for the respondent submitted that in the present
case, there is no question of following procedure under
Section 50 because from the person of the accused, nothing
was recovered, but from the gunny bag which he was holding,
poppy straw was recovered. For this purpose reliance is
placed on the decisions of this Court in Kalema Tumba v.
State of Mahrashtra [(1999) 8 SCC 463] and State of Punjab
v. Baldev Singh [(1999) 6 SCC 172].
In Kalema Tumba (supra) this Court considered the
mandatory requirement of Section 50 of NDPS Act and held
that only when the person of an accused is to be searched
then he is required to be informed about his right to be
examined in presence of a gazetted officer or a magistrate.
The Court further held that in view of the decision in the
case of Baldev Singh (supra) the decision rendered by this
Court in State of Punjab v. Jasbir Singh [(1996) 1 SCC 288]
wherein it was held that though poppy husk was recovered
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from the bags of the accused, he was required to be informed
about his right to be searched in presence of a gazetted
officer or a magistrate stood overruled. In facts of that
case the Court held that Heroine was found from the bags
belonging to the appellant and not from his person and
therefore it was not necessary to make an offer for search
in presence of a gazetted officer or a magistrate.
In the case of Baldev Singh (supra) the Constitutional
Bench (in para 12) observed thus: - On its plain reading,
Section 50 would come into play only in the case of a search
of a person as distinguished from search of any premises
etc.
Further after considering various decisions the Court
held (in para 57) that when an empowered officer or a duly
authorised officer acting on prior information is about to
search a person, it is imperative for him to inform the
person concerned of his right under sub-section (1) of
Section 50 of being taken to the nearest gazetted officer or
the nearest magistrate for making the search. However, such
information may not necessarily be in writing.
In view of the aforesaid decision of the Constitutional
Bench, in our view, no further discussion is required on
this aspect. However, we may mention that this right is
extension of right conferred under Section 100 (3) of the
Criminal Procedure Code. Sub-Section (1) of Section 100 of
the Code provides that whenever any place liable to search
or inspection is closed, any person residing in, or being in
charge of, such place, shall, on demand of the officer or
other person executing the warrant, and on production of the
warrant, allow him free ingress thereto, and afford all
reasonable facilities for a search therein. Sub-Section (3)
provides that where any person in or about such place is
reasonably suspected of concealing about his person any
article for which search should be made, such person may be
searched and if such person is a woman, the search shall be
made by another woman with strict regard to decency.
Sub-section (7) of Section 100 further provides that when
any person is searched under sub-section (3) a list of all
things taken possession of shall be prepared and a copy
thereof shall be delivered to such person. This would also
be clear if we refer to search and seizure, procedure
provided under Sections 42 and 43 of the building,
conveyance or place. Hence, in our view, Section 50 of the
N.D.P.S. Act would be applicable only in those cases where
the search of the person is carried out.
The learned counsel for the appellant next contended
that from the evidence it is apparent that the I. O. has
not followed the procedure prescribed under Sections 52, 55
and 57 of the N.D.P.S. Act. May be that the I.O. had no
knowledge about the operation of the N.D.P.S. Act on the
date of the incident as he recorded the FIR under Section
9/1/78 of the Opium Act. In our view, there is much
substance in this submission. It is true that provisions of
Sections 52 and 57 are directory. Violation of these
provisions would not ipso facto violate the trial or
conviction. However, I.O. cannot totally ignore these
provisions and such failure will have a bearing on
appreciation of evidence regarding arrest of the accused or
seizure of the article. In the present case, I.O. has
admitted that the seal which was affixed on the muddamal
article was handed over to the witness P.W.1 and was kept
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with him for 10 days. He has also admitted that the
muddamal parcels were not sealed by the officer in charge of
the police station as required under Section 55 of the
N.D.P.S. Act. The prosecution has not led any evidence
whether the Chemical Analyser received the sample with
proper intact seals. It creates a doubt whether the same
sample was sent to the Chemical Analyser. Further, it is
apparent that the I.O. has not followed the procedure
prescribed under Section 57 of the N.D.P.S. Act of making
full report of all particulars of arrest and seizure to his
immediate superior officer. The conduct of panch witness is
unusual as he offered himself to be a witness for search and
seizure despite being not asked by the I.O., particularly
when he did not know that the substance was poppy husk., but
came to know about it only after being informed by the
police. Further, it is the say of the Panch witness that
Muddamal seal used by the PSI was a wooden seal. As against
this, it is the say of PW2 SI/IO that it was a brass seal.
On the basis of the aforesaid evidence and faulty
investigation by the prosecution, in our view, it would not
be safe to convict the appellant for a serious offence of
possessing poppy-husk.
In the result, the appeal is allowed and the impugned
judgment and order passed by the High Court confirming the
conviction of the appellant is set aside. The appellant be
released forthwith, if he is not required in any other case.