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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.