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1989 Supreme(P&H) 789
PUNJAB & HARYANA HIGH COURT
Gokal Chand Mital and S.S.Sodhi JJ.
Amrit Singh
Versus
State Of Haryana
Criminal Appeal No. 513-DB of 1987,
Decided On : SEPTEMBER 27, 1989
The provisions of Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 are mandatory and cannot be waived by the mere statement of a police officer. A person to be searched must be informed of his right to be searched in the presence of a gazetted officer or magistrate, and the onus is on the prosecution to prove that the person declined this offer.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - SEARCH OF PERSON - PROCEDURE - MANDATORY - WAIVER - EVIDENCE - SECTION 18 - POSSESSION OF OPIUM - CONVICTION - SET ASIDE.
Fact of the Case:
The appellant, a Sub-Inspector of Police, was convicted under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (the Act) for being found in possession of 4 kilograms of opium. The prosecution alleged that the appellant was seen carrying a briefcase containing the opium near a bus stand and was apprehended by police officers. The appellant denied the charges and claimed that he was falsely implicated.
Finding of the Court:
The court found that the prosecution's case was not supported by sufficient evidence. It noted that the only witnesses to the apprehension and search of the appellant were police officers, and that no independent witnesses were called to corroborate their testimony. The court also found that the appellant was not informed of his right to be searched in the presence of a gazetted officer or magistrate, as required by Section 50 of the Act.
Issues: 1. Whether the prosecution had proved beyond reasonable doubt that the appellant was in possession of opium. 2. Whether the appellant's right to be searched in the presence of a gazetted officer or magistrate under Section 50 of the Act was violated.
Ratio Decidendi: The court held that the prosecution had failed to prove its case beyond reasonable doubt. It found that the testimony of the police officers was not corroborated by any independent witnesses, and that the appellant's right to be searched in the presence of a gazetted officer or magistrate had been violated. The court also noted that the appellant had been taken to the C.I.A. Staff Karnal instead of the nearest police station, as required by Section 52(3) of the Act.
Final Decision: The court set aside the appellant's conviction and ordered his release.
S.S.Sodhi, J.
1. The challenge in appeal here is to the conviction of the appellant-Sub Inspector Amrit Singh of the Uttar Pradesh Police under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 hereinafter referred to as `the Act), for being found in possession of 4 kilograms of opium,
2. According to the prosecution at about 5 P. M. on March 1, 1936, when Sub-Inspectors Narpat Singh and Joginder Singh along with other police officials were out on patrol near the bus-stand Panipat, they saw the appellant-Sub-Inspector Amrit Singh carrying a brief case coming from the Southern Gate of bus-stand. Seeing the police party, he retreated, whereupon suspicion was aroused and the police party then overpowered him near the gate. Amar Singh Lambardar of village Dhansauli also happened to come there at that time. On search of the brief case, four kilograms of opium was recovered.
3. The present case came to be registered at police station `City Panipat on the report of Sub-Inspector Joginder Singh regarding the apprehension and search of the appellant Amrit Singh and the recovery from him of the said four kilograms Of opium, the first information report recorded thereon being exhibit PC/1.
4. The case of the prosecution rests upon the testimony of PW1 Sub-Inspector Narpat Singh and PW 2 Joginder Singh. Both these witnesses deposed in a similar fashion namely, that they saw the appellant coming from inside the bus-stand holding a brief-case exhibit P/1 in his hand. Seeing the police party, he tried to retrace his steps upon which they became suspicious and apprehended him. Amar Singh Lambardar, who happened to be present at the bus and also joined them. Sub-Inspector Joginder Singh, after offering himself for search, informed Amrit Singh that if he so desired, his search would be carried out in the presence of a gazetted officer. Amrit Singh, however, declined this offer and he was thereafter searched. It was from the brief-case exhibit P/1, that the appellant was carrying. that four kilograms of opium wrapped in a wax paper was recovered. 25 grams of opium was taken from it as a sample and the opium was thereafter sealed.
5. When examined under Section 313 of the Code of Criminal Procedure, 1973, Amrit Singh denied the prosecution case and pleaded innocence. It was specifically stated by him that at the time of his arrest, he had asked the police party to conduct his search in the presence of a gazetted officer, but this was not acceded to.
6. Further, it was stated by the appellant-Amrit Singh that he had gone to village Sanauli on February 28, 1986 to meet Hari Krishan and Rattan Lal in whose family the son of his friend had been married. There were differences between the spouses and he had gone there to get these differences sorted out. They did not, however, agree to his proposal and he then told them that it would lead to no good result if they did not send their daughter to the house of bridegroom. He then came to Panipat to go on to Agra and at about 10 A.M. when he was at the bus stand Panipat, Inspector Sowarn Singh caught him and took him in a car to C.I.A. Karnal where he was falsely implicated in this case.
7. In defence, four witnesses were examined. The testimony to note is that of DW 1 Bhale Ram Moharrir Head-Constable of Police Station `City, Panipat who deposed that the case property of the present case came to him from the C.I.A. Staff Karnal on March 17, 1986 while DW 4 Hukam Singh stated that at about 10 A.M. a year-and-half ago, he was standing outside the gate of police station `Saddar Panipat when he heard some noise between Amrit Singh and Inspector Sowarn Singh. Hearing this noise, he went there and saw. Amrit Singh saying that he was a police inspector and asking why he was being harassed. The appellant was then taken in a car and when he enquired from Inspector Sowarn Singh, he was told that the appellant was only to be interrogated. The car was then taken towards Karnal. About 2 to
