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CASE NO.: Appeal (crl.)  1240 of 1999

PETITIONER: STATE OF PUNJAB                                    

RESPONDENT: BALWANT RAI                                        

DATE OF JUDGMENT: 24/02/2005

BENCH: B.P. SINGH & ARUN KUMAR   

JUDGMENT: J U D G M E N T

B.P. SINGH,J.                    The respondent herein was put up for trial before the Additional Sessions Judge,  Sangrur who by judgment and order dated August 8, 1997 found the respondent guilty of the  offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for sh ort   N.D.P.S. Act) and sentenced him to undergo rigorous imprisonment for ten years and a fine of   Rs.one lakh, in default of payment of fine to undergo rigorous imprisonment for 2-1/2 (two a nd a  half) years.   The respondent preferred an appeal before the High Court of Punjab & Haryana  at  Chandigarh being Criminal Appeal No.655-SB/1997.  The High Court by its impugned judgment  and order of 19th February, 1999 allowed the appeal and set aside the order of conviction an d  sentence passed against the respondent.  The State of Punjab has come up in appeal before th is  Court by special leave.         The facts of the case are that ASI Sampuran Singh (PW3) along with ASI Surinder  Paul Singh (PW1) and Head Constable Satnam Singh, Constable Harinder Singh and other  police officials was on patrol duty.  While they were at village Ahankheri, Sampuran Singh P W3  received a secret information that the respondent was selling poppyhusk in wholesale and tha t on  the preceding night in village Farid Pur Kalan several bags of poppyhusk had been unloaded  and the accused was waiting for customers.  On receipt of such information, a wireless messa ge  was sent to Pritpal Singh, Superintendent of Police, Malerkotla (PW2) who was requested to  reach the spot.  Chowkidar of village Ahankheri joined the police party and the police party   reached the place indicated in the secret information.   The respondent was found sitting on  bags  numbering 15.   In the meantime,   the Superintendent of police also reached there.  In his  presence PW3 opened the bags and found the bag to contain poppyhusk.   There were 15 such  bags.  The contents of the bags were mixed up and two samples each weighing 500 gms.were  taken.  The remaining poppyhusk was packed in the same bags each containing 37 kgs. of  poppyhusk.  The samples were duly sealed  and after necessary formalities and requirements o f  law were complied with a personal search of the respondent was conducted and from the person   of the respondent a sum of Rs.200/- was recovered, which was taken into possession under  recovery memo Ex.PB.  The sample was sent to the chemical examiner, Chandigarh and on  receipt of his report Exh.PH, the respondent was put up for trial.  The prosecution sought t o  prove its case by adducing oral as well as documentary evidence.   ASI Surinder Pal Singh  member of the raiding party was examined as PW1 while Shri Pritpal Singh, Superintendent of  Police was examined as PW2.   The investigating officer ASI Sampuran Singh was examined as

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PW3.  The report of the chemical examiner was produced before the court marked Exh.PH.         The incriminating circumstances were put to the accused in his examination under  Section 313 of the Code of Criminal Procedure.   There was a general denial by the responden t of  all the incriminating circumstances put to him but in answer to the last question, the respo ndent  stated that the police party was inimical towards him and he had, therefore, been falsely  implicated.  According to him in the year 1987 he had advanced a sum of Rs.18,000/- to Dhan  Singh and Hakam Singh.   The said Dhan Singh and Hakam Singh refused to repay the amount  on demand.  In the year 1990 ASI Amar Singh, ASI Sampuran Singh,PW3 and sub-inspector  Shamsher Singh brought him (the respondent) to the police station Dhuri and falsely implicat ed  him in a case.  A relative of the respondent filed a writ petition in the High Court and a W arrant  Officer was appointed by the High Court.  His report disclosed that the respondent along wit h  Roop Singh and Sajjan Singh had been illegally detained in the police station Dhuri.  Ultima tely,  the High Court imposed a fine of Rs.5000/- upon sub-inspector Shamsher Singh for the illegal   detention of the respondent and others.  On account of this police officials were inimical t owards  him and, therefore, sub-inspector Shamsher Singh got him falsely implicated in this case.         The trial court accepting the evidence of the prosecution witnesses, and rejecting t he  defence pleaded by the respondent, found the respondent guilty and sentenced him as earlier  noticed.           In appeal before the High Court, it was argued that the conviction of the respondent   was bad in law for non-compliance with the provisions of Section 50 of the N.D.P.S Act.  The   High Court upheld this contention.   The reasoning of the High Court in this regard is that  since  the police had specific information that the respondent was indulging in the trade of poppyh usk,  Section 50 stood attracted.  Even though the Superintendent of police was associated with th e  search, neither he nor the investigating officer gave the option to the respondent to be sea rched  in the presence of a gazetted officer or magistrate.   Referring to several judgments of the  High  Court, the learned judge came to the conclusion that in view of the fact that the search was  made  pursuant to secret information received by the investigating officer, Section 42 read with S ection  50 obliged  the prosecution to give an option to the respondent to be searched before a magi strate  or a gazetted officer.   Since that was not done, the mandatory provisions of Section 50 of  the  N.D.P.S Act were breached and the respondent was entitled to an acquittal.  The High Court  held that the use of the word "person" in Section 50 has to be given its widest import other wise  the provision will be rendered nugatory.   As an illustration the High Court observed that i f a  person was found carrying a bag in his hand containing narcotic substance, before the bag is   searched, the requirements of Section 50 had to be fulfilled.  It went to the extent of hold ing that  Section 50 would apply even in a case where a search is conducted in the house of the accuse d.    In this view of the matter, the High Court allowed the appeal and set aside the order of  conviction and sentence against the respondent.         Even before us it was argued on behalf of the respondent that the search conducted  by the raiding party in the instant case was a personal search of the respondent and, theref ore,

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the provisions of Section 50 of the Act are attracted.  We are not persuaded to accept the  submission.  It has been brought to our notice that recently this Court on a difference of o pinion  has referred to a larger Bench the question as to whether  search of the bag carried by the  accused on his shoulder attracts Section 50 of the Act, and whether failure to give to the a ccused  the necessary option contemplated by Section 50 before searching his bag would be in violati on  of the provisions of Section 50. [2004) 7 SCC 735]  Some earlier judgments of this Court do  take  the view that search of a person does not extend to search of a vehicle, container, bag or  premises.   Since the matter has been referred to a larger Bench, we need not express any op inion  on that question.   The facts of this case are entirely different.  We are not concerned  wi th a case  of the nature referred to  a larger Bench of this Court.   In the instant case 15 bags of po ppyhusk  were found  by the side of the road, and the petitioner was found sitting on them.  On searc h of  the respondent, nothing incriminating was found and only a sum of Rs.200/- was recovered, bu t  on search of the bags it was found to contain poppyhusk.   The question is whether  in the f acts  and circumstance of this case, search of the bags would amount to search of the  person of t he  respondent.   In our view this is clearly not a case of personal search and, therefore,  requirements of Section 50 will not be attracted.  The High Court was clearly in error in ho lding  that the provisions of Section 50 of the N.D.P.S Act  apply to a case with such facts.         Learned amicus curiae appearing on behalf of the respondent sought to sustain the  order of acquittal by reference to other evidence on record.  He submitted that the police w as  inimical towards the respondent and, therefore, the respondent was involved in this case at  the  instance of sub-inspector Shamsher Singh.   We have earlier noticed the defence of the  respondent.  The earlier incident took place some time in the year 1990, whereas the inciden t  giving rise to the instant case took place on 24th September, 1994 i.e.about four years late r.    Moreover, so far ASI Sampuran Singh (PW3) is concerned, we find that in the earlier episode  he  was not the officer against whom the High Court had passed an order imposing  fine.   It was   sub-inspector Shamsher Singh against whom a fine was imposed by the High Court for illegal  detention of the respondent and some others.   It was submitted that since sub-inspector  Shamsher Singh is on friendly terms with ASI Sampuran Singh, PW3, therefore, he colluded  with Shamsher Singh and falsely implicated the respondent.   We are not impressed by the  argument.   The fact is that apart from these officers, the Superintendent of Police was als o  associated with the search, though the respondent has gone to the extent of denying his pres ence.    It would be too much to suspect merely on the basis of such allegations that the respondent  was  falsely implicated.  Moreover, if such a plea of the respondent were to be  accepted, in no  case  can the respondent   be prosecuted because if prosecuted, his plea would be that the police  was  inimically disposed towards him, and therefore, falsely implicated  him.           We have examined the evidence on record and from the facts of this case, it does not   appear to be a case of implanted evidence.   The police had prior information of the fact th at  poppyhusk contained in several bags had been unloaded at the point where they were ultimatel y  found.  Intimation of this fact had been given to the Superintendent of Police who reached  

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the  place where the bags were unloaded.   The respondent was found present there.   The  

quantity is so large that the question of implanting does not arise.  No other explanation h as been  offered by the respondent.            Given these facts and circumstance, we are of the view that the defence of the  respondent, that he was falsely implicated, cannot be accepted.            In view of these findings, we allow this appeal, set aside the impugned judgment and   order of the High Court acquitting the   respondent and find him guilty of the offence punis hable  under Section 15 of the N.D.P.S. Act.   We affirm the order of conviction and sentence passe d by  the trial court on 8.8.97 in Sessions Case No.7 of 20.1.1995 arising out of FIR No.102 dated   24.9.1994.         This Court by its order dated 14th July, 1999 had issued bailable warrants.   In cas e  the respondent has been released on his furnishing bail bonds, the same are cancelled and th e  State is directed to apprehend the respondent forthwith.   The respondent shall undergo the  remainder of the sentence.

       We place on record our appreciation of the assistance rendered by Mr.Rana Ranjit  Singh, amicus curiae.