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CASE NO.: Appeal (crl.)  1143-1144 of 2003

PETITIONER: DURGO BAI & ANR.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 10/08/2004

BENCH: P. VENKATARAMA REDDI & B.P. SINGH.

JUDGMENT: J U D G M E N T

P. VENKATARAMA REDDI, J.

The appellants herein were convicted under Section 22  of the Narcotic Drugs and Psychotropic Substances Act,  1985 (hereinafter referred to as ’the Act’) and sentenced to  undergo imprisonment for ten years and to pay a fine of  Rs.1 lakh. The appellant in Criminal Appeal No. 1144 of  2003, namely, Phuman Singh was also convicted under  Section 307 IPC for firing a shot from his pistol at the police  party and on that count, sentenced to undergo  imprisonment for four years and to pay a fine of Rs.2,000.  The sentences were ordered to run concurrently. The trial  Court however acquitted Phuman Singh for the charge under  Sections 25 and 27 of the Arms Act on the ground that the  sanction of the District Magistrate has not been duly proved  by the prosecution. Aggrieved by the same, the appellants  preferred appeals in the High Court of Punjab & Haryana.  The appeals were dismissed by the impugned judgment  which is somewhat cryptic. The prosecution case is as follows: During the early hours of 2nd August, 1987, Inspector  Sukhdev Singh (PW1)\027Station House Officer, Jalalabad P.S.  received a telephonic message from the Commandant, BSF,  Jalalabad that a special nakabandi (patrolling) has to be  organized. He, along with the other police personnel went to  the BSF Headquarters and after reaching there the  Commandant deputed two Inspectors including Inspector  Shivpal Singh (PW2) and three more BSF personnel to  accompany PW1 for the patrolling. The Commandant  instructed them to hold the naka at the canal bridge in the  vicinity of Machhiwara village as he had some information  about smuggling. At 3.30 a.m. the patrolling party noticed  two persons coming from the direction of the village  Tahliwala. When they were challenged, there was a firing  from the opposite direction aimed at the patrolling party. In  self-defence, the Inspectors (PWs 1 & 2) fired one shot  each. Another Inspector also fired a light pistol. It was then  noticed that a man with a pistol and a woman were the  persons coming towards them. The patrolling party  confronted them and made the man concerned dislodge his  pistol. The naka party then apprehended both of them. First  they searched Phuman Singh and found five cartridges in  the left fold of his chadar. Then one empty and four live  cartridges were also found in the chamber of the revolver  thrown on the ground. Ten packets of ’brown sugar’ / heroin

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were found in the bag which was slung on the left arm of  Phuman Singh. On search of the jhola (hand baggage), the  other appellant Durgo Bai was carrying ten packets of  ’brown sugar’ were recovered. The packets weighed one  kilogram each. The ten packets recovered from each were  made into separate parcels and the seal of PW1 was affixed  thereon. A recovery memo was prepared and a rucca was  also recorded. The revolver and the cartridges were also  seized. FIR was recorded on the basis of the rucca. The  seized parcels and the revolver were deposited by PW1 with  the property room of which a Head Constable was in-charge.  He sent information to the Customs Officers. Thereupon,  Inspector-Customs (PW3) came to the police station on  3.8.1987 and took possession of 20 kgs. of heroin contained  in two bags which were handed over to him by PW1. The  seals were found to be in-tact. After weighing the packets,  he took out four samples of five grams from each packet on  which the seals of PW3, BSF and police were affixed. After  leaving some of the samples with the BSF and police, PW3  sent 20 samples to the Chemical Examiner for analysis and  report. Necessary documentation, such as inventory of the  goods seized, was done. The remaining heroin was kept in  the packets and sealed and thereafter, the packets were put  in a trunk on which PW3’s seal was affixed and it was  deposited in the police malkhana (property room). On  12.8.1987, PW3 recorded the statements of the witnesses  and the accused were interrogated and they gave  statements confessing to the commission of crime. The  Chemical Examiner, by his report dated 18.81987 (Ex.PN)  noted that the ’brown powder’ sent in each sample  contained ’di-acetyl morphine’. It appears that the Chemical  Examiner’s report was actually received much later i.e. on  6.10.1987 as stated by PW3. The complaint was filed by  Assistant Collector of Customs, Amritsar on 19.10.1987 in  the Court of the Chief Judicial Magistrate, Ferozepur  together with various documents. After committal by the  Judicial Magistrate, Ferozepur, the Additional Sessions  Judge, Ferozepur framed charges and proceeded with the  trial. The trial Court held that the recovery of heroin from  the two accused persons was proved beyond reasonable  doubt and the presumption under Section 54 of the Act  would come into play. The learned trial Judge also held that  there was no violation of the mandatory provisions of  Sections 41, 42 & 50 of the Act. The evidence of DW2\027the  Sarpanch of village Tahliwala, to the effect that the police  took Durgo Bai\027the appellant into custody from her house  on the 9th of August, 1987, was disbelieved. The learned  Additional Sessions Judge convicted and sentenced the  accused as per the details already referred to. On appeal, the High Court held that the prosecution  case was fully established by PW1 which has been  corroborated by the evidence of PW2 and other witnesses  and that there was no legal flaw which vitiated the trial. The first contention of the learned counsel for the  appellants is that there is any amount of doubt as to  recovery of heroin from the accused inasmuch as the same  has not been produced before the Court even after granting  opportunity to the prosecution before arguments were  commenced. It is then contended that no evidence was let in  as to how the seized packets, which were deposited in the  police property room after the samples were taken by PW3,  were transferred to Customs Division, Amritsar as  mentioned in the petition dated 18.01.1988 filed in the  Court by the prosecution. It is also pointed out that the

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identity of the sample packets sent and the packets received  by the Chemical Examiner for analysis was not established  beyond doubt. Though sample seals were prepared, they  were not sent to the Chemical Examiner. There was every  possibility of tampering. It is conceded that none of these points were raised or  argued before the trial Court or the High Court. Even in the  memorandum of SLP, no ground is taken about non- production of case property or the custody of the goods  during the intervening period or the possibility of tampering  the seals of sample packets. Not even relevant questions  were put in the cross-examination to cover these aspects.  We cannot, for the first time, in this appeal under Article 136  of the Constitution, go into these factual aspects especially  when there is no clear pointer one way or the other from the  recorded evidence. The next contention raised by the learned counsel for  the appellants is about the violation of the mandatory  requirements of Sections 42 & 50 of the Act. The learned  counsel submits that the information about the commission  of the offence which was received by BSF Commandant and  conveyed to PW1 was not reduced into writing as required  by Section 42(1) of the Act.  This argument overlooks the  fact that there is nothing in the evidence on record to  suggest that prior information as contemplated by Section  42 of the Act was received by the BSF Commandant or the  Police Inspectors concerned. PW2 merely stated that  "Commandant Sharma had not given the naka party the  names of the accused. Information was that something is to  be smuggled into India". Thus, check was organized not  because the Police or the BSF officials had specific  information about the offence in question or even that the  heroin will be carried or transported by someone from  nearby villages. The general information about the  smuggling into India which led the Commandant to organize  a nakabandi cannot be equated to the receipt of information  within the contemplation of Section 42(1) of the Act. In any  case, we need not dilate on this aspect further as it is  Section 43 that is attracted in the instant case but not  Section 42. It is not a case of entering into or searching any  building, conveyance or enclosed place. The next argument is that Section 50 has been violated  inasmuch as search was done without adhering to the  conditions laid down in the Section. This is again based on  the premise that the police officials concerned must be  presumed to have acted on the basis of definite prior  information. Once this assumption is held to be wrong, the  ratio of the decision in State of Punjab Vs. Balbir Singh  [(1994) 3 SCC 299] gets attracted. The legal position has  been clarified thus: "\005But when a police officer carrying on the  investigation including search, seizure or arrest  empowered under the provisions of the CrPC  comes across a person being in possession of the  narcotic drugs or psychotropic substances then  two aspects will arise. If he happens to be one of  those empowered officers under the NDPS Act also  then he must follow thereafter the provisions of  the NDPS Act and continue the investigation as  provided thereunder. If on the other hand, he is  not empowered then the obvious thing he should  do is that he must inform the empowered officer  under the NDPS Act who should thereafter  proceed from that stage in accordance with the  provisions of the NDPS Act. But at this stage the

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question of resorting to Section 50 and informing  the accused person that if he so wants, he would  be taken to a Gazetted Officer and taking to  Gazetted Officer thus would not arise because by  then search would have been over. As laid down in  Section 50 the steps contemplated thereunder  namely informing and taking him to the Gazetted  Officer should be done before the search. When  the search is already over in the usual course of  investigation under the provisions of Cr.P.C then  the question of complying with Section 50 would  not arise."

It was noted in the beginning of the same paragraph  that in the cases before the Court, the Police Officers did not  proceed to act under the provisions of the NDPS Act after  having necessary information or after entertaining  reasonable belief as envisaged by Section 42. It was again  emphasized in paragraph 25 that if there is a chance  recovery of narcotic drug or psychotropic substance during a  search in exercise of the power under the provisions of  Cr.P.C, the compliance with Section 50 does not arise.  However, the empowered officer should, from that stage,  proceed to carry out the investigation in accordance with the  other provisions of NDPS Act.  The interpretation of Section 50 and the effect of failure  to observe the safeguards enshrined in Section 50 came up  for consideration before a Constitution Bench of this Court in  State of Punjab Vs. Baldev Singh [(1999) 6 SCC 172].  The learned Judges, after referring extensively to the  exposition of law in Balbir Singh’s case (supra), remarked  that none of the decisions of this Court after Balbir Singh  have departed from that opinion. Though the question of  applicability of Section 50 in the context of chance recovery  did not directly fall for consideration in the said case, the  legal position in this regard clarified in Balbir Singh’s case  was reiterated by A.S. Anand, C.J., speaking for the  Constitution Bench. The proposition was thus laid down in  paragraph 12: "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.  However, if the empowered officer, without any  prior information as contemplated by Section 42 of  the Act makes a search or causes arrest of a  person during the normal course of investigation  into an offence or suspected offence and on  completion of that search, a contraband under the  NDPS Act is also recovered, the requirements of  Section 50 of the Act are not attracted."

Again, at para 57, while summarizing the conclusions,  it was said:  "(1) That when an empowered officer or a duly  authorized 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."

It is significant to notice that the prefatory expression  "acting on prior information" has been advisedly used in tune with

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the law laid down in Balbir Singh’s case.  We therefore find no substance in the contention raised by  the learned counsel for appellant in regard to violation of Section  50, even assuming that the search of jhola involved search of  person. The last contention somewhat faintly urged was that the  conviction under Section 22 is illegal inasmuch as the article in  question is not a psychotropic substance. It is not denied that the  seized substance answers the definition of ’manufactured drug’  being an opium derivative containing ’di-acetyl morphine’ and  therefore the appropriate Section providing for punishment is  Section 21. The punishments prescribed under Sections 21 & 22  are the same. By reason of citation of wrong Section in the  charge, we do not think that the appellants were handicapped  from meeting the case against them or otherwise suffered any  prejudice. The trial and conviction cannot therefore be set aside  on this score. As regards the charge under Section 307 IPC against the  second appellant, the evidence of PWs 1 & 2 appears to be vague  and scanty and it is not safe to convict him on the basis of this  evidence. Apart from the fact that the lead/ empties were not  recovered or attempted to be recovered, there is no definite  evidence that the accused targeted the members of the patrolling  party. The direction in which the shot from the revolver travelled  and the details relating to other logistics are not forthcoming. On  the strength of the evidence of PWs 1 & 2 it can only be said that  they heard the sound of firing and then they retaliated. There was  every possibility of the accused firing a shot aimlessly to scare  away those who challenged him from a distance. Hence he is  acquitted of the charge under Section 307 IPC. Of course, his  acquittal for the offence under Section 307 does not make any  difference as regards the sentence which the appellant has been  subjected to under the NDPS Act.  Consequently, Criminal Appeal No. 1143 of 2003 is  dismissed. Criminal Appeal No. 1144 of 2003 filed by Phuman  Singh is allowed to the extent of setting aside the conviction  under Section 307 IPC. Further, his conviction under Section 22  of the NDPS Act is altered to one under Section 21 of the Act and  the sentence shall remain the same.