Punjab-Haryana High Court
Kulwant Singh And Anr. vs Assistant Collector Customs, ... on 7 December, 1995
Equivalent citations: 1996CRILJ1925
Author: H.S. Bedi
Bench: H.S. Bedi, S.C. Malte
JUDGMENT H.S. Bedi, J.
1. This appeal arises out of the judgment of conviction recorded by Shri S. S. Arora, Additional Sessions Judge, Amritsar, whereby the two appellants - Kulwant Singh and Ajit Singh have been convicted for an offence punishable under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (hereinafter to be referred as the Act).
2. The prosecution ease is as follows :- On 23rd July, 1986, at about 6.30 p.m. a party of the Custom Preventive Staff Amritsar, consisting of inspectors T. R. Kaushal P. W. 1, Sandeep Singh P. W. 4, and various other Custom Officials under the supervision of Shri Piara Singh, Customs Superintendent P. W. 2, intercepted a truck bearing registration No. H. R. U. 2058 near Radha Swami Hospital on G. T. Road, Beas, while the truck was on its way towards Amritsar from Jalandhar side and on the search of the truck, 11 bags, in all weighing 3.5 . quintals opium were found kept concealed under crates of rum which were also recovered from the truck. At that time, appellants Kulwant Singh and Ajit Singh were sitting in the truck while accused Dalbir Singh (since deceased) was driving the same. As the accused-appellants could not produce any permit or licence for the possession of the opium, 33 samples of 10 grams each were separated from the total quantity of opium and the samples and the remaining opium were sealed and the various other articles, including the crates of rum also taken into possession vide seizure memo Exhibit P. A, attested by Inspector Sandeep Singh. Custom Superintendent Piara Singh as also the prosecution witnesses Joginder Pal and Rajinder Kumar. Kulwant Singh. Dalbir Singh and Ajit Singh then made statements Exhibit PB to PD before Piara Singh Custom Superintendent in which they, inter alia admitted that the opium had been recovered from them, whereas Kulwant Singh also disclosed that one Diwan Singh was also associated in the smuggling of opium and that it had been purchased from Mahmood Alam Pardhan of U. P. and that Surjan Singh and Sahib Singh were also partners in the transaction. During the course of investigation. Diwan Singh was also arrested and his statement too was recorded, whereas accused Mahmood Alam, Surjan Singh and Sahib Singh could not be arrested and were ultimately declared proclaimed offenders and could not be brought to trial vide Court order dated 15-1-1988. The samples of opium seized from the possession of the appellants were sent to the Chemical Examiner for analysis, who vide report Exhibit PH found that the samples were of opium. On completion of the due formalities, a regular complaint was filed by the Assistant Collector Customs against Kulwant Singh, Ajit Singh, Diwan Singh as also against Dalbir Singh (since deceased). Dalbir Singh, however died during the course of the trial and on the aforesaid allegation, a charge-sheet was framed against the three accused and they pleaded not guilty and claimed to be tried.
3. To substantiate its case the Custom Department examined Inspectors T. R. Kaushal P. W. 1. Sandeep Singh P. W. 4.. Shri Piara Singh, Customs Superintendent, P. W. 2, and H. K. Kaushik P. W. 3, the Customs Inspector Incharge of the Malkhana.
4. The statements of the accused were then recorded under Section 313 Cr. P. C. wherein they denied the prosecution allegations and pleaded false implication. They also pleaded that the Customs Officers had obtained their signatures on Exhibits PB to PD under coercion and threat and as such they were not bound by the same.
5. The trial Court came to the conclusion that the ocular version had been properly given by T. R. Kausalon P.W. 1, Piara Singh P. W. 2 and Sandeep Singh P. W. 4 and they had fully supported the story put-forth in the complaint in all material particulars. The Court also found that viewed in this light the mere fact that Joginderpal and Rajinder Kumar, the so-called independent witnesses to the recovery and seizure had not been examined, would not affect the prosecution case more particularly as they had signed Exhibit PA the recovery memo in token of its correctness, and that the statement Exhibit PB to PD having been made in a proper manner before Piara Singh, Customs Superintendent (P. W. 4), had to be accepted as true. The learned trial Court further held that there has been full compliance with the provisions of Section 50 of the Act, as P. W. 2 Piara Singh was a gazetted officer of the Customs Department and as such it was not necessary to make a fresh offer to the accused-appellants to be searched in the presence of a Magistrate. Having held as above, the appellants were convicted and sentence to RI for 12 years and also to pay the amount of (sic) of rupees One lac each and in default of payment of fine, to further undergo RI for one year but as far as Diwan Singh, the third accused was concerned, the Court held that there was no evidence qua him to connect him with the seizure and accordingly acquitted him of all charges. Hence this appeal.
6. The learned counsel for the appellants argued that the prosecution case was not free from doubt and suffered from various infirmities as the document Exhibit PG and PH clearly indicated that there was no firm evidence to show that the samples which had been sent to the Chemical Examiner were in fact a part of the seized opium. It was also urged that though the recovery memo Exhibit PA laid down signed by the official witnesses as also by Joginderpal and Rajinder Kumar, the two independent witnesses but the nature and the circumstances leading to the recovery of the opium and the manner in which their signatures had been appended, indicated that this document has been created later on, and that the statements of the three accused Exhibit PB to PD having been taken under duress, no reliance could be placed upon them.
7. We have considered the arguments of the learned counsel for the appellants and have gone through the record and carefully examined the documents in original. We find that the arguments of the learned counsel are not well-founded. The documents Exhibits PG and PH which are a communication from the department of the Chemical Examiner andan answer thereto respectively bear the seals of the department on them and are otherwise in order so that their authenticity cannot be disputed. Exhibit PA which is the recovery memo, was not required to be recorded in the nature of an FIR in which the history of the arrest and seizure was to be given as all it had to indicate was that the recovery of such and such article had been made in the presence of witnesses. This we find has been clearly indicated in it.
8. Mr. Ghai then urged that the appellants were entitled to succeed on the short ground that there had been non-compliance with the provisions of Section 50 of the Act. He has urged that merely because Piara Singh P. W. 2 was a gazetted officer of the department, did not absolve the officers of the department who were making the siezure, to make an offer to the accused to be searched before a Magistrate. In this connection he has cited, (1993) 3 All Cri LR 498 : (1993 Cri LJ 2310) (Kant), Babu Rao v. State of Karnataka, and (1995) 2 Crimes 724, Bijaya Kumar Subudhi v. State of Orissa. As against this, Mr. Sharma, learned" Additional Central Government Standing Counsel has argued that as the search had been effected in the presence of Piara Singh P. W. 2, a gazetted officer of the department, the provisions of Section 50 stood substantially complied with and as such the law did not require that the accused be informed of their right to be searched before a Magistrate. When faced with the judgments cited by the learned counsel for the appellants, he urged that they had been wrongly cited and as they were not of this Court, we were not bound by them.
9. We have heard the learned counsel for the parties and find that in the light of the object behind Section 50 of the Act, the compliance with its provisions is to be strictly made. In State of Punjab v. Balbir Singh, (1994) JT (SC) 108 : (1994 Cri LJ 3702), the Hon'ble Supreme Court while construing this section held it to be mandatory and observed that this provision gives a valuable right to an accused to be given a choice (if he so required) to be searched in the presence of a gazetted officer or a magistrate as such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing as important safeguard to the accused. The Court further observed that the language of the section was clear and the provision implicitly made it obligatory on the authorised officer to inform the person to be searched of his right and it was, therefore, taken as an imperative requirement on the part of the officer undertaking the search to inform the person to be searched of his right that if he so required he could be searched before a gazetted officerer a magistrate what can be reasonably inferred from this judgment is that the accused is left with the option to be searched before a gazetted officer or a Magistrate. 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 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.
10. Faced with this situation, Mr. Sharma, learned Additional Central Government Standing Counsel has urged that the provisions of Section 50 of the Act could not be applied where the search and seizure was not effected from the person of the accused but from some other place such as a room or a vehicle in the case before us the recovery having been made from a truck. We have considered this, argument as well and find that it lacks merit. In Amarjit Singh 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 : (1994 AIR SCW 4393), 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 Sections 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.
11. For the reasons recorded above, we are of the opinion that the judgment of the trial Court is not sustainable and while allowing the appeal, we set aside the conviction and sentence of the appellants and acquit them of the charges and direct that they be set at liberty forthwith, if not required to be detained in any other case.