Punjab-Haryana High Court
Darshan Lal vs State Of Haryana on 18 July, 1996
Equivalent citations: 1997CRILJ2137
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This appeal is directed against the judgment/order dated 2-11-1995/3-11-1995 passed by the Additional Sessions Judge, Ambala whereby the appellant has been convicted for an offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and setneced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac and in default of payment of fine to further undergo rigorous imprisonment for two years.
2. The prosecution case is that on 3-6-1993 Sub Inspector Deep Ram of Police Station Panchkula alongwith other police officials was present at the bus stand of village Fatehpur in connection with patrolling and checking. Dariyai Lal (PW-4) was present and talking to him. He received a secret information that the appellant was coming from the side of village Peermachhala, on the kacha path having a bag containing opium. Information was given to D.S.P. Panchkula on wireless. Sub Inspector Deep Ram alongwith his companions held nakabandi. After 10/15 minutes the appellant was sighted while corning on the kacha path from the side of said village having a bag in his hand. He was apprehended by S.I. Deep Ram with the help of his companions. In the meantime D.S.P. Bishan Ram also reached there who was apprised of the secret information. On a direction given by the said D.S.P., Sub inspector Deep Ram conducted the search of the bag which was found to contain 2 1/2 kilograms of opium. A sample weighing 50 grams was separated. The sample as well as the remaining opium were converted into two sealed parcels with the seal of Dr. Deputy Superintendent of Police also fixed his seal with the initials of BS on the said parcels. Since the appellant could not produce any licence or permit for keeping the said opium in his possession, the ruqa Ex. PA was sent to the Police Station on the basis of which First Information Report Ex. PA/1 was recorded. Case property was deposited in the Malkhana. Sealed sample parcel was sent to the office of the Forensic Science Laboratory. On receipt of the report of the Chemical Examiner and Completing the investigating a charge-sheet was submitted to the Court.
3. A charge under Section 18 of the Act was framed against the appellant to which he pleaded not guilty and claimed a trial.
4. In support of its case, prosecution examined as many as eleven witnesses including the Investigating Officer.
5. In his statement under Section 313 of the Code of Criminal procedure, the appellant denied all the allegations of the prosecution and pleaded false implication. He did not produce any evidence in his defence.
6. On an appraisal of the evidence produced before him, the Additional Sessions Judge convicted and sentenced the appellant as stated above. Hence this appeal.
7. I have heard the learned counsel for the parties and have gone through the record.
8. Shri R.S. Ghai, Senior Advocate learned counsel for the appellant has argued that the conviction of the appellant is liable to be set aside on the short ground that the provisions of Section 50 of the Act were not complied with by Sub Inspector Deep Ram before conducting the search of the appellant. It has been pointed out by the learned counsel that it was imperative for sub Inspector Deep Ram to disclose the secret information to the appellant and also to inform him about his right to be searched before a Gazetted Officer or a Magistrate but the said requirement has not been complied with nor any plausible explanation has been given.
9. On the other hand Shri Raman Gaur, Advocate, the learned counsel for the State of Haryana has argued that the search was conducted in the prsence of D.S.P. Bishan Singh who was a Gazetted Officer and this amounts to the due compliance of the provisions of Section 50 of the Act. It has been further argued by the learned counsel that the appellant has not been able to show that any prejudice has been caused to him.
10. I have given my careful thought to the respective arguments advanced at the bar.
11. I need not reproduce the provisions of Section 50 of the Act. Enough to say that this section has been enacted to act as a safeguard against vexatious search and unfair dealing and to protect and safeguard the interest of an innocent person. It also provides a weapon to the law enforcement agency against common allegation that the drugs have been planted by these officers. While interpreting this section in, State of Punjab v. Balbir Singh, (1994) 2 JT (SCC) 108 : (1994 Cri LJ 3702), the Apex Court held (at p. 3714 of Cri LJ) :-
"...in the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer of Magistrate. To us, it appears that, this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate, if he so requires, since such a search would impart much more authenticity and credit-worthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicity makes it obligatory on the authorised officer to inform the person to be searched of his right...."
While approving the aforesaid view in Sayad Mohd. Saiyad Umar Saiyad v. State of Gujarat, (1995) 3 JT (SC) 489 : 1995 Cri LJ 2662, their Lordships of the Supreme Court while holding that the protection under Section 50 of the Act to the accused is sacrosanct and cannot be disregarded, made the following observations (at p. 2665 of Cri LJ):-
"Finding a person to be in possession of articles which are illicit under the provisions of NDPS Act has, as we have said, the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishment which can extend to 20 years, rigorous imprisonment and a fine of Rupees two lakhs or more. It is necessary, therefore, that Courts dealingwith offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the concerned officer that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of this right of protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with.
It was held by their Lordships that if the provisions of Section 50 of the Act have not been complied with, as stated above, the necessary conclusion would be that the prosecution has not been able to prove that the accused was in possession of the offending article. Thus, it becomes clear that there is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that he so chooses he will be searched in the presence of a Gazetted Officer or Magistrate. If this mandatory recuirement is not complied with, the violation thereof is fatal to the prosecution.
12. In the case in hand, it is admitted case of the prosecution that Sub Inspector Deep Ram had not disclosed the secret information to the appellant, nor he had informed the appellant about his right to be searched before a Gazetted Officer or a Magistrate. Even in their testimony in the Court Head Constable Sewa Singh (PW-8), A.S.I. Hari Pal (PW-9) and S.I. Deep Ram (PW-10) have not stated anywhere that the secret information was ever disclosed to the appellant or that the appellant was made aware of high right to be searched before a Gazetted Officer or a Magistrate as required by Section 50 of the Act. The mere fact that a Gazetted Officer was present and on his direction the search was conducted is not enough to meet the requirement of Section 50 of the Act as interpreted by the Apex Court in the two cases cited above. The question directly arose before a Division Bench of this Court in, Kulwant Singh v. Assistant Collector Customs, (1996) 1 Chand Cri C 142. In that case also a Gazetted Officer was present when the search was conducted. However, the appellants were not informed about their rights to be searched under Section 50 of the Act. It has been held that mere presence of the Gazetted Officer at the time of the search, without informing an accused about his right to be searched before a Gazetted Officer or a Magistrate, does not amount to the complince of Section 50 of the Act. On this short ground, the conviction of the appellants was set aside. A similar view has been expressed by the Karnataka High Court in, Babu Rao v. State of Karnataka, (1993) 3 All Cri LR 498 : (1993 Cri LJ 2310) and Bijaya Kumar Subudhi v. State of Orissa, (1995) 2 Crimes 724 (Orissa). Therefore, the necessary conclusion is that the mere presence of Bishan Singh D.S.P. at the time of the alleged search cannot be said to be due compliance of Section 50 of the Act. Admittedly violation of the said provision is fatal to the prosecution.
13. For the reasons mentioned above I accept this appeal, set aside the conviction and sentence of the appellant and acquit him of the charge under Section 18 of the Act. The appellant shall be released forthwith if not wanted in any other case.