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PUNJAB & HARYANA HIGH COURT
V.S.Aggarwal, J.
Mukhtiar Singh
Versus
State Of Haryana
Criminal Appeal No. 636 of 1994,
Decided On : JANUARY 30, 1996
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50(1) - SEARCH AND SEIZURE - RIGHT TO BE SEARCHED BEFORE GAZETTED OFFICER OR MAGISTRATE - MANDATORY COMPLIANCE - FAILURE TO COMPLY - VITIATES TRIAL.
Fact of the Case:
The appellant was convicted under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 for possession of 1-1/2 Kg of opium. He challenged the conviction on the ground that the provisions of Section 50(1) of the Act, which gives the accused the right to be searched before a Gazetted Officer or Magistrate, were not complied with.
Finding of the Court:
The court held that the provisions of Section 50(1) of the Act are mandatory and that failure to comply with them vitiates the trial. In this case, the appellant had opted to be searched before a Gazetted Officer, but was instead taken before a Naib Tehsildar, who was not a Gazetted Officer. This resulted in prejudice to the appellant and rendered the search and seizure invalid.
Issues: Whether the provisions of Section 50(1) of the Narcotic Drugs & Psychotropic Substances Act, 1985 are mandatory.
Ratio Decidendi: The court relied on the Supreme Court decision in State of Punjab v. Balbir Singh, which held that the provisions of Section 50(1) of the Act are mandatory. The court held that the right to be searched before a Gazetted Officer or Magistrate is a valuable right that cannot be taken lightly, and that failure to comply with the provisions of Section 50(1) results in prejudice to the accused and vitiates the trial.
Final Decision: The court set aside the judgment and order of sentence passed by the trial court and acquitted the appellant.
V.S.Aggarwal, J.
1. This is an appeal filed by Mukhtiar Singh (hereinafter described as the appellant) directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Hissar dated 14.11.1994 and 16.11.1994 respectively. By virtue of the impugned judgment, the learned trial court held the appellant guilty of the offence punishable under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter described as the Act). By the subsequent order, the appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. One lac. In default of payment of fine, he was to undergo further rigorous imprisonment for two years.
2. The relevant facts can briefly be delineated. On 10.2.1993 ASI Partap Singh alongwith HC Gurmit Singh and Constables Tej Pal and Raj Pal were present on the road between Bhuna and Ratia. It is near village Mohammadpur Sottar. The appellant was seen coming on a Vicky (moped) from the side of village Mohammadpur Sottar. On seeing the police party, the appellant stopped his vehicle and made an attempt to turn back. On suspicion he was stopped. He was given a notice suspecting him to be in possession of some intoxicant. The appellant was informed that if he likes his person and that the search of the moped can be effected in presence of a Gazetted Officer or a Magistrate. The appellant opted that his person may be searched before Gazetted Officer or a Magistrate.
3. The appellant was produced alongwith the vehicle before Sh. Prem Kumar, Naib Tehsildar, Bhuna. The search was conducted from the tool cavity of the moped. The opium was recovered. The contents were weighed and found to be 1- 1/2 Kg. 100 gms. was taken as the sample. The sample and rest of the opium were converted into two separate parcels and were sealed with the seal of PS. Both the packets were taken into possession vide a recovery memo. The seal after use was handed over to HC Gurmit Singh.
4. Ruqa was sent to the police station on the basis of which formal first information report was recorded. Officer-in-charge of the police station reached the place. The appellant was produced before him. After verifying the fact, he affixed his seal of SP on the packets. The case property was deposited in the Malkhana. Later the respective sample was sent to the Chemical Examiner. On receipt of the report that contents were opium, report under Section 173 Cr.P.C. was filed.
5. On 17.1.1994 a charge was framed against the appellant for the offence punishable under Section 18 of the Act. The appellant pleaded not guilty and claimed trial. The prosecution examined seven witnesses and thereafter the statement of the appellant was recorded in terms of Section 313 Cr.P.C. The appellant denied recovery of opium from his person. He alleged that he has falsely been implicated. He was called by the police from his house and falsely implicated in the presence of Sarpanch Hardip Singh.
6. In defence the appellant examined Hardip Singh DW-1, Sarpanch of the village. He deposed that the appellant at the relevant time did not have any vehicle. The appellant was arrested from a place near his fields. The appellant was taken to the police station and this witness was informed that he would be allowed to go after some time.
7. The learned trial court on appraisal of evidence held that there has been strict compliance of the provisions of Section 50 of the Act and further that it has been established beyond all reasonable doubt that opium was recovered from the person of the appellant. With these findings, the impugned judgment and the order of sentence were passed.
8. Aggrieved by the same, the present appeal has been filed.
9. The main argument advanced was that provisions of sub-section (1) of Section 50 of the Act have not been complied with. The said provision reads :-
"50(1). When any officer duly authorised under Section 42 is about to search any person under the provisions of Section
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