Back
1996 Supreme(P&H) 1089
PUNJAB AND HARYANA HIGH COURT
H.S. Bedi, J.
Prem - Appellant
Versus
State of Haryana - Respondent
Criminal Appeal No. 892-SB of 1994.
Decided On : 26 July, 1996
For the Appellant :Mr. D.S. Bali, Sr. Advocate with Mr. D.V. Gupta, Advocate.
For the Respondent:Mr. B.S. Badhran, Advocate.
The provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are mandatory and have to be complied with in case of a chance encounter between the police party and the accused, provided it was the suspicious conduct of the accused that had aroused the curiosity of the police party and had led to his apprehension and search.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - SEARCH AND SEIZURE - COMPLIANCE WITH SECTION 50 - MANDATORY IN CASE OF CHANCE ENCOUNTER - OFFER TO BE SEARCHED BEFORE GAZETTED OFFICER OR MAGISTRATE - PARTIAL COMPLIANCE NOT SUFFICIENT.
Fact of the Case:
The accused was apprehended and searched by the police on suspicion of carrying opium. The search was conducted in the presence of a gazetted officer, but no offer was made to the accused to be searched in the presence of a Magistrate. The accused was convicted of an offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
Finding of the Court:
The court held that the provisions of Section 50 of the Act were mandatory and had to be complied with in case of a chance encounter between the police party and the accused, provided it was the suspicious conduct of the accused that had aroused the curiosity of the police party and had led to his apprehension and search. The court found that the offer given to the accused was partial and incomplete as no offer was given with regard to a possible search in the presence of a Magistrate.
Issues: Whether the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 were mandatory and had to be complied with in case of a chance encounter between the police party and the accused.
Ratio Decidendi: The court relied on the judgments of the Supreme Court in State of Punjab v. Balbir Singh and Mohinder Kumar v. State of Panaji Goa to hold that the provisions of Section 50 of the Act were mandatory and had to be complied with in case of a chance encounter between the police party and the accused, provided it was the suspicious conduct of the accused that had aroused the curiosity of the police party and had led to his apprehension and search. The court found that the offer given to the accused was partial and incomplete as no offer was given with regard to a possible search in the presence of a Magistrate.
Final Decision: The court allowed the appeal, set aside the judgment of the trial court, and acquitted the accused.
JUDGMENT
H.S. Bedi, J. (Oral) - This appeal arises out of the following facts :
On 27th July, 1990 PW-5 Dharam Pal Sub Inspector along with a police party consisting amongst others of PW-3 Ram Kumar Head Constable were present at about 1.30 p.m. on the G.T. Road in front of Haldana Police Post. One Prem Singh PW was also present along with them.
In the meantime a Haryana Roadways bus bearing No. HNE 378 came from Delhi side. The bus stopped at a distance of 50 yards from the police party and accused Prem alighted therefrom and started walking away briskly towards village Haldana. This conduct of the accused excited the suspicion of the police party and he was accordingly apprehended and an offer was made to him as to whether he would like to be searched in the presence of a gazetted Officer. In the meantime PW-7 Pirthi Singh DSP admittedly a gazetted officer reached the place and the accused and the bag that he was carrying on his shoulder were brought before him. The search of the accused and his bag in the presence of Prithi Singh Saini, DSP, led to the recovery of 2- kgs of opium. A small quantity of opium was separated as a sample and the rest was sealed and taken into possessions. PW-5 Dharam Pal ASI sent a ruqa Ex. PD to the police station on which a formal first information report Ex. PD/1 was also recorded by Head Constable Ram Krishan. On completion of the investigation, a case for an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as the Act) was made out against the accused and as he pleaded not guilty, he was brought to trial.
2. In order to prove the allegations against the accused, the prosecution examined amongst others, Head Constable Ram Kumar as PW-3, Prem Singh as PW-4, Sub Inspector Dharam Pal PW-5, Pirthi Singh Saini DSP PW-7 in addition to the formal evidence that was required to link the accused with the crime.
3. After the close of the prosecution case the accused was examined under Section 313 Criminal Procedure Code and denied the allegations and pleaded false implication.
4. The trial court came to the conclusion that the evidence of SI Dharam Pal PW-5 read along with that of Head Constable Ram Kumar PW-3 Prem Singh PW-4 the only independent witness and Pirthi Singh Saini DSP PW-7 conclusively proved the recovery of the opium from the accused, that the other evidence indicated that the opium that had been recovered had been kept in proper custody and that there had been a prima facie compliance with the provisions of Section 50 of the Act inasmuch the accused had been searched in the presence of a gazetted officer, that is, PW-7 Pirthi Singh Saini DSP and also an independent witness Prem Singh PW-4; that the minor discrepancies in the evidence of the prosecution witnesses could justifiably be ignored and having held as above, convicted and sentenced the accused to 10 years RI and to the payment of fine of Rs. 1 lac and in default of payment to undergo three years RI more. Hence this appeal.
5. Mr. D.V. Gupta, the learned counsel appearing in support of the appeal has urged first and foremost that the facts of the case indicated that the provisions of Section 50 of the Act had not been complied with and in the light of the judgments of the Supreme Court in State of Punjab v. Balbir Singh, 1994(3) Supreme Court Cases 299 and Mohinder Kumar v. State of Panaji Goa, 1995(2) RCR 599 the accused was entitled to acquittal on that short ground.
6. As against this, the learned State counsel Mr. B.S. Badhran had argued that there had been compliance with the provisions of Section 50 of the Act inasmuch as that an offer had been given to an accused as to whether he would like to be searched in the presence of a gazetted officer or a Magistrate, the further choice as to before which of these two officers be was to be searched was left to the investigating authorities and this appeared to have been done in the present case, the provisions of sect
