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SUPREME COURT OF INDIA
UDAY UMESH LALIT, INDU MALHOTRA, KRISHNA MURARI, JJ.
State Of Punjab - Appellant
Versus
Baljinder Singh & Anr. - Respondents
Criminal Appeal Nos.1565-66 OF 2019 (@ out of SLP (Crl.) Nos. 5659-5660 of 2019)
Decided on : 15-10-2019.
(A) Narcotic and Drugs and Psychotropic Substances Act, 1985 – Section 50 – Seizure of Poppy Husk – Acquittal by High Court – Section 50 of Act affords protection to a person in matters concerning personal search and stipulates various safeguards – It is only upon fulfilment of and strict adherence to said requirements that contraband recovered pursuant to personal search of a person can be relied upon as a circumstance against the person – Illicit article seized from person during personal search conducted in violation of safe-guards provided in Section 50 of Act cannot by itself be used as admissible evidence of proof of unlawful possession of contra-band – However, mandate of Section 50 of Act is confined to personal search and not to search of a vehicle or a container or premises – Conviction may not be based only on the basis of possession of an illicit article recovered from personal search in violation of requirements under Section 50 of Act but if there be other evidence on record, such material can certainly be looked into. (Paras 12, 14 and 16)
(B) Narcotic and Drugs and Psychotropic Substances Act, 1985 – Section 15 read with Section 50 – Seizure of Poppy Husk – Acquittal by High Court – Personal search of accused did not result in recovery of any contraband – Even if there was any such recovery, same could not be relied upon for want of compliance of requirements of Section 50 of Act – But search of vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of Act as far as personal search was concerned, no benefit can be extended so as to invalidate effect of recovery from search of vehicle – Since seven bags of poppy husk each weighing 34 kgs. were found from vehicle which was being driven by accused with other accused accompanying him, their presence and possession of contraband material stood completely established – Acquittal recorded by High Court was not correct – Order of conviction recorded by Trial Court restored. (Paras 17, 19 and 20)
Facts of the case:
Present appeals arise out of judgment1 of High Court setting aside order of conviction and sentence recorded by Trial Court against present respondents.
Findings of Court:
Since in present matter, seven bags of poppy husk each weighing 34 kgs. were found from vehicle which was being driven by accused with other accused accompanying him, their presence and possession of the contraband material stood completely established.
Result : Appeals allowed.
JUDGMENT :
Uday Umesh Lalit, J.
1. Leave granted.
2. These appeals arise out of the judgment [Judgment and order dt.22.1.19 in CRA-D-917-DB/2011 & CRA-D-923-DB/2011] of the High Court [The High Court of Punjab and Haryana at Chandigarh] setting aside the order of conviction and sentence recorded by the Trial Court against the present respondents, namely, Baljinder Singh and Khushi Khan.
3. The case of the prosecution as set out in the judgment of the High Court was as under:
“3. The case of the prosecution in a nutshell is ; that on 19.8.2009 ASI Rakesh Kumar along with other police officials in connection with patrolling duty were present at Sirhind bye-pass, Rajpura. Lachhman Singh son of Sarwan Singh came on the spot. When Rakesh Kumar was talking with Lachhman Singh, a Qualis bearing registration no. PB-13-D-7000 was seen coming from Ambala side. On seeing the police party, the driver of the vehicle tried to reverse the vehicle. On suspicion, the vehicle was stopped. One lady was sitting with the driver. On enquiry, the driver and passenger disclosed their identities. ASI Rakesh Kumar suspected them to be carrying some contraband in the bags lying in the vehicle. He wanted to search them. He apprised the accused of their right to get the search conducted in the presence of Magistrate or gazetted Police Officer. However, accused reposed confidence in him. Joint consent statement of accused was reduced into writing. On search, 7 bags containing poppy husk were recovered. Two samples of 250 grams each from each bag were separated and the residual poppy husk of each bag weighed 34 kgs. All the sample parcels and bulk parcels were sealed with the seals bearing impression ‘RK’ Specimen seal was prepared and the seal after use was handed over to HC Malwinder Singh. The case property was taken into possession. Ruqa was sent to the police station, on the basis of which FIR was registered. The case property was deposited in the Malkhana. On receipt of chemical report and after completing all the codal formalities, challan was put up in Court against the accused.”
4. Thus, according to the prosecution, accused Baljinder Singh, driver of the vehicle and Khushi Khan who was accompanying the driver, were guilty of offences punishable under Section 15 of the Narcotic and Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”). As indicated in the above paragraph, the contraband material found in seven bags contained poppy husk. It is also a matter of record that the personal search of both the accused was undertaken after their arrest, which did not lead to any recovery of contraband.
5. The case of the prosecution was accepted by the Judge, Special Court, Patiala in Sessions Case No.IIT/17.11.2009/11. By its judgment dated 8.9.2011, the Trial Court concluded that the aforesaid two accused were guilty of the offence punishable under Section 15 of the Act and sentenced them to suffer 12 years’ rigorous imprisonment with fine in the sum of Rs.2 lakhs each, in default whereof, they were further directed to undergo further rigorous imprisonment for two years.
6. In the appeals preferred by the accused, the High Court observed that the personal search of the accused was not conducted before the Magistrate or a Gazetted Officer and as such there was complete infraction of Section 50 of the Act. Granting benefit on that count, the High Court set aside the order of conviction and sentence recorded by the Trial Court and acquitted both the accused of the charge levelled against them.
7. Ms. Jaspreet Gogia, learned advocate appearing for the State submitted that the High Court fell in error in not considering the fact that the search of the vehicle had resulted in recovery of seven bags of poppy husk containing 34 kgs in each bag. In her submission, though there may be infraction of the requirement of Section 50 as regards personal search of the accused, the fact of recovery of material from the vehicle was an independent fact
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