Punjab-Haryana High Court
Amar Singh vs State Of Punjab on 25 January, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
Criminal Appeal No. 812-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No. 812-SB of 2000
Date of decision: 25.01.2012
Amar Singh .....Appellant
VERSUS
State of Punjab ....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. J.S. Bhatia, Advocate
for the appellant.
Mr. Gaurav Garg Dhuriwala, DAG, Punjab
for the State.
*****
RANJIT SINGH, J.
On being convicted for an offence under Section 18 of the Narcotic Drugs and Psychotropic Substance Act (hereinafter referred to as an 'Act'), the appellant has filed this appeal to impugn his conviction as well as the sentence of rigorous imprisonment for ten years imposed on him coupled with fine of ` 1,00,000/-. As per the allegation, 5 kgs of opium was allegedly recovered from the appellant on 13.02.1992. This recovery was effected by SI/SHO Mal Singh of Police Station Sadar Fazilka. As per the prosecution story, SI Mal Singh was on patrolling duty. While proceeding from village Muhuana Bodla towards village Jhotian Wali, he came across the appellant, who was going towards village Jhotian Wali. On seeing the police party, the appellant made an attempt to slip away. On the basis of Criminal Appeal No. 812-SB of 2000 2 suspicion he was apprehended. SI Mal Singh apprised the appellant that he had a suspicion that he was carrying some intoxicant and, therefore, was required to be searched. SI Mal Singh gave an offer to the appellant if he wanted to be searched in the presence of Gazetted Officer or the Magistrate. The appellant reposed confidence on the police officer concerned. SI Mal Singh consequently prepared a consent memo on which the appellant endorsed his signatures. This memo was attested by ASI Darshan Singh and Constable Harbhajan Singh. Thereafter, the appellant was searched in accordance with the rules. The opium wrapped in a glazed paper was recovered from the bag, which the appellant was carrying. 20 gms of opium was separated as a sample. On weighing, the remaining opium was found to be 4 kgs and 980 grams. The weighed opium was put in a separate plastic container. The sample as well as the plastic container were sealed by the officer with his seal having impression 'MS'. Separate seal impression was prepared and the seal after use has been handed over to ASI Darshan Singh. The entire case property was taken in possession by preparing separate recovery memo. This memo was again attested by ASI Darshan Singh and Constable Harbhajan Singh. Ruqa was prepared and on the basis thereof the FIR was registered by MHC Ranjit Singh. A sum of ` 50/- in the form of currency note was recovered on the personal search of the appellant. This was also taken in possession vide separate memo. The grounds of arrest were endorsed to the appellant and on completion of formalities, the appellant and the case property was taken in custody. Following day, the appellant as well as the case property was produced before the Ilaqa Magistrate. Criminal Appeal No. 812-SB of 2000 3 The case property thereafter was deposited with MHC with the seals intact as per the orders of the Court. The sample of the opium, which was taken, was sent for Chemical Examiner for analysis. Upon receipt of the report and on completion of investigation, challan was presented against the appellant under Section 18 of the Act.
The appellant, thereafter, faced the trial before the Special Judge, Ferozepur. The prosecution case rested on the evidence of five witnesses. Thereafter, the incriminating circumstances and the evidence appearing against the appellant was put to him. The appellant did not lead any evidence in his defence. On the basis of evidence so led, the appellant was found guilty of the offence alleged and imposed the sentence as already noticed. The appellant, accordingly, has filed this appeal.
Counsel for the appellant has impugned the conviction and the sentence imposed on him primarily on three counts. As per the counsel for the appellant, there was violation of mandatory provision of Section 50 of the Act inasmuch as the offer given to the appellant for being searched before the Gazetted Officer or the Magistrate was defective. Counsel for the petitioner has drawn my attention to the memo through which this offer, as made, has been recorded. Counsel would, accordingly, find fault with this offer on the ground that the appellant was not given offer in a proper manner by apprising him if he wished to be searched before Gazetted Officer or a Magistrate. The counsel contends that as per the memo Ex.PA, the only offer given to the appellant was for being searched before the Gazetted Officer and no offer was made for being searched before Magistrate. As per the counsel, this offer would not satisfy the Criminal Appeal No. 812-SB of 2000 4 mandatory provisions of Section 50 of the Act and the entire trial proceedings and the conviction based on such defective offer cannot be sustained.
Counsel would next contend that no independent witness was joined during the recovery and the search. Recovery memo was also not got signed from the appellant, who was the accused in this case. Even the FSL form was not filled at the spot as is requirement of law. On this basis, the counsel would contend that statutory and mandatory provisions, as contained under the Act, have been violated, vitiating the conviction and sentence imposed on the appellant.
State counsel, on the other hand, would strenuously urge that it is not a case of personal search. The recovery, as per the State counsel, was from the bag, which was carried by the appellant and, thus, recovery was not from the person of the appellant to attract the provisions of Section 50 of the Act. Even otherwise, the counsel would contend that proper offer was made to the appellant and there is no violation of Section 50 of the Act which, as per the counsel, is not attracted to the fact situation of this case. State counsel would further contend that there is no provisions contained in the statute, which requires the investigating officer to fill a FSL form at the spot. This requirement was on the basis of standing instructions issued by the Narcotic Bureau and cannot be considered to have binding effect, violation of which, would not lead to vitiation of the conviction. As per the counsel, it was chance recovery, which was away from the village and hence there was no occasion or person available in or around the place, which could have been made Criminal Appeal No. 812-SB of 2000 5 to join as an independent witness. Counsel, accordingly, contends that the conviction of the appellant, as recorded, is fully justified on the basis of evidence. The State counsel would also highlight that this is a heavy recovery of opium weighing 5 kgs and, thus, really there is no possibility of false implication as such heavy quantity cannot be implanted as it would not be available with the police to do so.
Counsel for the appellant has placed before me number of precedents in support of his plea that violation of the provisions of Section 50 of the Act would be enough to interfere in the order of conviction and sentence imposed on the appellant. Counsel would first refer to recent decision of the Hon'ble Supreme Court in the case of Nirmal Singh Pehlwan @ Nimma versus Inspector, Customs, Customs House, Punjab 2011 (3) R.C.R. (Criminal) 831. Reference is also made to the case of Man Bahadur versus State of H.P., 2008 (4) R.C.R. (Criminal) 563, in support of the contention that the accused person ought to be made aware that he has a right to be searched before Magistrate or Gazetted Officer. As is observed in this case such a communication may not necessarily be made in writing but as far as possible such communication should be made in the presence of some independent and respectable person witnessing the arrest and search. Finding that the accused person was not informed of his right to be searched before the Gazetted Officer or the Magistrate, the Court held that the provisions of Section 50 of the Act were not complied with and the conviction of the appellant was set aside. Reference is then made to Ashwinikumar Sarvansingh Chouhan versus State of Criminal Appeal No. 812-SB of 2000 6 Maharashtra 2002 (1) R.C.R. (Criminal) 195, where the Bombay High Court has set aside the conviction of accused person, where the offer, as made under Section 50 of the Act, was found to be invalid on the ground that offer made was for being searched before the Gazetted officer or the Judicial Magistrate. Finding that the reference to Magistrate in Section 50 would mean Executive Magistrate or Special Executive Magistrate the offer was termed invalid and, hence, conviction set aside.
In Krishan Kumar versus State of Haryana 1996 (3) R.C.R. (Criminal) 625, the conviction was set aside on the ground that the offer was partial one and, thus, did not complied with directions of Section 50 of the Act. The option, as given, was to be searched before the Gazetted Officer and no option was given for search before the Magistrate. This Court had, accordingly, set aside the conviction in this case.
Counsel for the appellant has also placed before me the judgment in this case of State of Punjab versus Balbir Singh 1994 AIR (SC) 1872. In this case, the Hon'ble Supreme Court has observed that provisions of Section 50 of the Act are mandatory, which would not be attracted in a case of chance recovery of narcotic drug. It is observed that where a police officer acting under Criminal Procedure Code comes across a person and on search recover narcotic drug, question of complying with Section 50 of the Act would not arise. It is further observed that the police officer, who happened to have this recovery by chance, may be required to comply with provisions under the Act from that stage onwards, he comes to learn about the recovery as such.
Criminal Appeal No. 812-SB of 2000 7
Reference is then made to the case of Abdul Rahiman versus State of Kerala 2002 AIR (SC) 1810, where the conviction was set aside on the ground that the option given to the accused for search was before the Gazetted Officer or the Senior Officer and no such offer was given for search before the Magistrate. This offer was found invalid. Reliance is placed on the case of Inderjit Singh versus State of Haryana 1997 (2) R.C.R. (Criminal) 114, where requirement of complying with the provisions of Section 50 of the Act even in case of chance recovery was insisted. This Court was of the view that in such case, Section 50 of the Act would have to be complied with. In this case also, the accused was acquitted on the ground that offer was partial offer for being searched before the Gazetted Officer and no offer was made for being searched before the Magistrate.
Counsel for the appellant has referred to some other judgments but there would hardly be any need to multiply the precedents, as the issue apparently seems to be fairly settled by now.
The State counsel has placed before me the decision in the case of State of Himachal Pradesh versus Pawan Kumar 2005 (4) Supreme Court Cases 350. This issue in regard to the applicability of the provisions of Section 50 of the Act in case of chance recovery and when the mandate of this section would apply, was considered by the Apex Court in this case. As per the State counsel, all the precedents cited on behalf of the appellant need not be examined in detail, as in this case, Section 50 of the Act would not be attracted or applicable.
Criminal Appeal No. 812-SB of 2000 8
Plea is that recovery was not from the person of the appellant but was from the bag which he carried and this would not be a case of personal search attracting the provisions of Section 50 of the Act. In this regard, counsel seeks support from the judgment in the case of Pawan Kumar (supra). In this case, two Hon'ble Judges of the Hon'ble Supreme Court differed in their view in regard to the applicability of Section 50 of the Act in a situation, which is at hand. On the basis of difference of opinion, the matter was referred to third Judge, who after referring to number of decisions came to hold inter alia that the word 'person' having regard to the scheme of the Act and the context in which it has been used in the section, naturally would mean a human being or a living individual unit and not an artificial person. It is further observed that word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. The Court further went on to hold that word 'person' would mean the human being with appropriate coverings or clothings or footwear etc. In this regard, it is held as under:-
"A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a Criminal Appeal No. 812-SB of 2000 9 carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."
It may need a notice that while taking this view, the Hon'ble Supreme Court has referred to number of precedents like Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, 2000 SCC (Cri.) 496, Madal Lal Vs. State of H.P., (2003) 7 SCC 465, Gurbax Singh Vs. State of Haryana, (2001) 3 SCC 28, State of Punjab Vs. Makhan Chand, (2004) 3 SCC 453, Kanhaiya Lal Vs. State of M.P., (2000) 10 SCC 380, Birakishore Kar Vs. State of Orissa, (2000) 9 SCC 541, Krishna Kanwar Vs. State of Rajasthan, (2004) 2 SCC 608, Sarjudas Vs. State of Gujarat, (1999) 8 SCC 508 and Saikou Jabbi Vs. State of Maharashtra, (2004) 2 SCC 186 while interpreting the word "person" in the context of Section 50 of the Act.
There is not much dispute in regard to the facts of this case. Concededly, recovery in this case is from a bag, which the appellant was carrying on his shoulder. As per the law laid down in Pawan Kumar's case (supra), the mandate of Section 50 of the Act would not be attracted in the fact situation of this case. Infact , this very issue had earlier come up for consideration before this Court in Criminal Appeal No. 812-SB of 2000 10 Criminal Appeal No. 758-SB of 2002 decided on 21.09.2007. The aspect of applicability of Section 50 of the Act was considered in detail on the basis of law laid down in Pawan Kumar's case (supra) and it was viewed that Section 50 of the Act would not be attracted to such a case.
State counsel has also referred to some of the judgments in such like situation, where recovery of the contraband was from the bag carried by accused in his hand. In this regard, reference is made to Zile Singh versus State of Haryana 2005 (1) RCR (Criminal)
166. In this regard, only reference is made to Sarjudas versus State of Gujarat 1999 (4) RCR (Criminal) 614. In a case of recovery of charas from the bag, which was hanging on a scooter and not on the person, Section 50 of the Act was held not applicable.
In view of the law laid down above and the factual position as it has emerged in this case, inescapable view, which can be formed is that Section 50 of the Act was not attracted in this case. Accordingly, the argument that this was a partial offer, or incomplete offer or improper offer under Section 50 of the Act would have no meaning. Infact, it was a case of chance recovery and not a case of prior information. The appellant happened to be intercepted when the police officer was on routine patrolling duty. By chance, he met the appellant. The police officer, accordingly, had searched the bag of the appellant on the basis of suspicion. In this context, the observation made by the Hon'ble Supreme Court in the case of Balbir Singh (supra) would also get attracted. This is perhaps the situation, which the Hon'ble Supreme Court has noticed. The police officer acting under a Criminal Procedure Code came across a Criminal Appeal No. 812-SB of 2000 11 person and on suspicion carried search leading to recovery of 5 kgs opium. The requirement of following the provisions of the Act upon recovery would also stand complied with as the police officer in this case did make an offer. Since it was not a personal search, the defect in the offer would be meaningless. I am, thus, not inclined to accept this limb of submission as raised by the counsel for the appellant.
The absence of independent witness at the time of recovery, which is advanced in the next ground of attack again, in my view would not rescue the case of the appellant. It is pleaded that the place of recovery was a thoroughfare and no independent witness was joined. The finding of fact, however, is that this place of recovery is at a distance of 2-2½ kilometers from village Jutianwala. It is on record that there is no farm house near the place of recovery. The trial Court, accordingly, found that no person was available near the place of recovery. The site plan, Annexure P-4, would depict this situation. The non-joining of independent witness, it being a chance recovery, apparently had not led to any prejudice to the appellant. It is not even alleged that the appellant was falsely implicated in this case because of some grudge or enmity. That is not even the case set up by the appellant. As has already been observed above, such a heavy recovery would normally not support the allegations of false implication. To implant 5 kgs of opium on a person falsely would defy logic. Such heavy quantity would not normally available with the police officers. Accordingly, this plea of the counsel for the appellant is also rejected.
The counsel has next contended that the FSL form for Criminal Appeal No. 812-SB of 2000 12 sending the case property to CFSL was not filled at the spot. In this case, the recovery was on 13.02.1992. The case property was produced before the Magistrate on the next day. This has clearly given in the evidence of Mal Singh, PW-5. He has categorically deposed that he had produced the appellant alongwith the case property before the Illaqa Magistrate. The appellant was, thereafter, remanded in judicial custody and the case property was deposited with the MHC. PW-5 had, accordingly, deposited the case property with MHC Ranjit Singh, who has also been examined as PW-3. He has lent support to the version of PW-5 in this regard.
In this background, the submission that the form for sending the recovery to CFSL examination would be immaterial. May be that there was some delay in sending the case property for examination, and in this background, it cannot be held that this fact alone would vitiate the prosecution case. Even otherwise, no provisions of the Act has been pointed out before me, which would lay down the requirement as a mandate in filling up such a form on the spot. All these requirements, even if otherwise, laid down by the administrative or executive instructions are only to ensure that the case property is not permitted to be tampered with in any manner. The case property, in this case, was duly sealed at the spot. The seal was handed over to the independent police officer, who kept the same. The property was deposited in the Malkhana after only producing the same before the Illaqa Magistrate.
In this regard, the State counsel has also placed reliance on Khet Singh versus Union of India (2002) 4 Supreme Court Cases 380. The Hon'ble Supreme Court, in this case, was dealing Criminal Appeal No. 812-SB of 2000 13 with the standing instructions and the submission that there was procedural illegality in conducting the search and seizure. The Hon'ble Supreme Court has held that the evidence collected thereby is admissible if no serious prejudice is caused to the accused. The plea, in this case, was also that seizure mahazar was not prepared at the spot in contravention of the standing instructions. The Hon'ble Supreme Court has held that the standing instructions are having no statutory force and are in the nature of guidelines for fair procedure to be adopted by the officer-in-charge of the investigation and the same can be deviated from by preparing the mahazar at a later stage where there are reasonable and justifiable grounds to do so. At the same time, the Court has also observed that the administrative instructions issued by Narcotic Control Bureau for not having force of law but are to be followed as guide by the officer- in-charge of the investigation. It is held that any departure therefrom must be based on justifiable and reasonable grounds but contravention of the instructions would not necessarily vitiate the conviction.
In view of above, I find that there is no merit in the appeal. The same is, accordingly, dismissed.
January 25, 2012 ( RANJIT SINGH ) rts JUDGE