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2000 DIGILAW 872 (PNJ)

Sitara Singh v. State Of Punjab

2000-08-07

A.S.GARG, HARJIT SINGH BEDI

body2000
Judgment H.S.Bedi, J. 1. This appeal arises out of the following facts :- On 10th December, 1988, PW-1 Harmail Singh Inspector/S.H.O. of Police Station, Khalra accompanied by Sub Inspector Darshan Singh of Police Station, Bhikhiwind and ASI Kirpal Singh and other police officials, held a nakabandi in the area of village Pahuwind. At about 2.00 p.m. a tractor driven by Sitara Singh accused came from the side of Khalra. The tractor was stopped and on a search of the two gunny bags on the lift, 80 kilograms of opium was recovered. Samples of the opium were taken out and sent for analysis to the Chemical Examiner, who opined that the recovered article was opium. On the completion of the investigation, the accused was charged for having committed an offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called `the Act) and as he pleaded not guilty, was brought to trial. 2 The prosecution in order to support its case examined Inspector Harmail Singh-PW1 and Sub Inspector Darshan Singh-PW2 who in their statements, stated that the accused had been given an offer under Section 50 of the Act and had advised him that he could, if he so wished, be searched in the presence of a Gazetted Officer or a Magistrate and as the accused had replied that he had full faith in the police, he had been searched by the Police Officers. These two witnesses also deposed to the recovery of opium in the manner already set out above. Inspector Amrik Singh-PW5 stated that the accused as well as the case property had been produced before him by S.I. Darshan Singh and that he had verified the facts and had sealed the case property with his own seal. Jagjit Singh-PW6, a Clerk from the office of the Regional Transport Authority, gave evidence to the effect that the tractor from which the opium had been recovered, belonged to one Gian Singh son of Bakshish Singh of village Sultanpur, Tehsil Nawan Shaher, District Ropar. 3. The prosecution case was then put to the accused and his statement recorded under Section 313 of the Cr.P.C. He denied all the allegations levelled against him and stated that he had been falsely implicated. 3. The prosecution case was then put to the accused and his statement recorded under Section 313 of the Cr.P.C. He denied all the allegations levelled against him and stated that he had been falsely implicated. He further stated that a day or two earlier, the police had recovered an abandoned tractor and some opium and that the police had apprehended him, one Kulwant Singh of Gehri and Gurmit Singh and Baljinder Singh of Chuslewar. He also stated that the police had tortured him and fractured his leg, arm and foot in that process and he had, thereafter, been falsely roped in. He examined Dr. Kanwaljit Singh-DW1 in his defence, who, on his examination on 14th December, 1988 at P.H.C. Sur Singh had found eleven injuries on his person which had been caused with blunt weapons and on x-ray, injury Nos. 3, 4, 6 and 7 were found to be fractures of the bones. 4. The trial Court came to the conclusion that the provisions of Sections 42 and 50 of the Act, had been complied with. It was also found that the case property had been adequately sealed and kept secure after its seizure. It was further observed that as the recovery had been made in December, 1988 and the prosecution evidence was being recorded after 3 or 4 years, some minor discrepancies in the statements given by the Police Officers could be ignored. The defence version was held to be un-acceptable as Dr. Kanwaljit Singh-DW1, who had examined the accused on 14th December, 1988 had found that his injuries had been caused within 12 hours and the explanation had been tendered by S.I. Darshan Singh, who deposed that as the accused was being taken for some additional recovery pursuant to his disclosure statement, the tractor on which the accused had been travelling had overturned injuring him in the process. The trial Court, accordingly, convicted and sentenced the accused to undergo rigorous imprisonment for 15 (fifteen) years and to pay a fine of Rs. 2,00,000/- (two lacs) for the offence charged and in default of payment of fine to further undergo rigorous imprisonment for two years. Hence this appeal. 5. Mr. The trial Court, accordingly, convicted and sentenced the accused to undergo rigorous imprisonment for 15 (fifteen) years and to pay a fine of Rs. 2,00,000/- (two lacs) for the offence charged and in default of payment of fine to further undergo rigorous imprisonment for two years. Hence this appeal. 5. Mr. D.S. Pheruman, the learned counsel for the appellant has, first and foremost, argued, placing reliance on Lamin Bojang v. State of Maharashtra, 1997(2) Recent C.R. 294, Niranjan Ram v. The State of Haryana, 2000(1) All Instant Judgments 206 and Chander v. State of Haryana, 2000(1) All Instant Judgments 220 respectively, that there had been a clear violation of Section 42 of the Act as despite the fact that the nakabandi had been held on the basis of prior secret information that contraband would be recovered, no information had been sent to the superior Police Officers or the source of the secret information set down, and as such, the accused was entitled to acquittal. He has also urged that an offer under Section 50 of the Act given to the appellant was a partial one and as such, conviction could not be sustained for this reason as well. In this connection, reliance has been placed on Gurnam Singh v. State of Punjab, 1998(2) RCR(Crl.) 7 and Jodha Singh v. State of Punjab, 1998(2) RCR(Crl.) 507 respectively and Jagjit Singh v. State of Punjab, 1998(3) RCR(Crl.) 561. As a corollary to this argument, reliance has further been placed on Amrit Singh v. State of Haryana, 1990(2) RCR(Crl.) 525, to contend that even assuming that a valid offer under Section 50 of the Act had been made and that the accused had abandoned his right to be searched by a Gazetted Officer or a Magistrate, yet in the light of the fact that there was no independent evidence on record either written or oral that he had, in fact, abandoned his right, the mere statement of the official witnesses to that effect could not be believed. 6. As against this, Mr. 6. As against this, Mr. Randhawa, the learned State Counsel has pointed out that in view of the interpretation put on Section 50 of the Act by the Supreme Court in Sarjudas v. State of Gujarat, 1994(4) RCR(Crl.) 614, Kalema Tumba v. State of Maharashtra and another, 1999 SCC (Crl) 1422 : 1999(4) RCR(Crl.) 575 (SC) and State of Punjab v. Baldev Singh, 1999 SCC (Crl.) 1080 : 1999(3) RCR(Crl.) 533 (SC), the arguments advanced by Mr. Pheruman, were no longer of substance. 7. We have heard the learned counsel for the parties and have gone through the judgments cited by them very carefully. 8. We deal with the arguments advanced by Mr. Pheruman seriatim. The first argument pertains to the non-compliance with the provisions of Section 42 of the Act. This section is reproduced below :- "42. 7. We have heard the learned counsel for the parties and have gone through the judgments cited by them very carefully. 8. We deal with the arguments advanced by Mr. Pheruman seriatim. The first argument pertains to the non-compliance with the provisions of Section 42 of the Act. This section is reproduced below :- "42. Power of entry, search, seizure and arrest without warrant of authority :- (1) Any such Officer (being an Officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, Narcotics, Customs Revenue, Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such Officer (being an Officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset, - (a) enter into and search any such building, conveyance or place; (b) in case or resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all material used in the manufacture thereof, and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance : Provided that if such Officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offence, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an Officer takes down an information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior". 9. A bare perusal of the section would show that sub-clauses (a), (b) and (d) deal with a situation where a specific or identifiable building, conveyance or place is intended to be searched. This would be evident from the fact that in each of these sub-clauses, the word "such" has been used. This provision cannot, therefore, apply where a general secret information has been received by the police that if a nakabandi was held, some narcotic could be recovered. The two judgments cited by the learned counsel for the appellant i.e. Lamin Bojang and Niranjan Rams cases (supra) pertain to cases where the information with the police was with regard to a specific and identifiable building and it was in that background, the Court held that the provisions of Section 42 of the Act, being mandatory, had to be complied with failing which, the accused were entitled to acquittal. 10. Mr. Pherumans argument with regard to the offer under Section 50 of the Act, is equally tenuous. It is true that the provisions of Section 50 have been held to be mandatory but in the light of the judgments of the Honble Supreme Court as also of this Court, each case has to be decided on its own facts. In this case, admittedly, the opium was recovered from the lift of the tractor. The question is as to whether in this situation, the provisions of the Section 50 were applicable or not. Mr. Randhawa, the learned State Counsel has cited Sarjudass case; Baldev Singhs case and Kalema Tumbas case (supra). In Baldev Singhs case (supra), a Constitution Bench of the Honble Supreme Court clearly observed that the provisions of Section 50 would come into operation only in the case of a search of the person as distinguished from a search of any premises etc. In Baldev Singhs case (supra), a Constitution Bench of the Honble Supreme Court clearly observed that the provisions of Section 50 would come into operation only in the case of a search of the person as distinguished from a search of any premises etc. Likewise, in Kalema Tumbas case (supra) it was held relying on Baldev Singhs case (supra) and overruling another judgment of the Honble Supreme Court in the State of Punjab v. Jasbir Singh, 1996(1) SCC 288 : 1996(2) RCR(Crl.) 777 (P&H)(DB), (wherein, it had been held that the provisions of Section 50, had to be complied with even in the case of seizure of contraband from a bag) and it was observed that this provision could be applied only to a seizure made from the person of the accused. In Sarju Dass case (supra) charas had been recovered from a bag kept on a scooter on which the accused were riding. The opium in the present case had been recovered from the lift of the tractor being driven by the appellant. We are, therefore, of the opinion that in view of the observations of the Honble Supreme Court on the applicability of the provisions of Section 50, the judgments cited by the learned counsel for the appellant cannot come to his assistance. Once it is so held, the additional argument of Mr. Pheruman that there was no evidence to show, but for a bald statement made by the two police officials, that the appellant had stated that he was willing to be searched by the Police Officer as he had full faith in them, becomes redundant. 11. We have also gone through the evidence on record. We find that the recovery of a huge amount of opium has been made from the appellant. We find no reason to disbelieve the evidence of the Police Officers as to the manner of the arrest of the appellant and the recovery made from him. We also find that Dr. Kanwaljit Singh-DW1 had stated that he had examined the appellant on 14th December, 1988 and had found a number of injuries on his person which had been caused within 12 hours. The prosecution has led evidence to explain how these injuries had been suffered. We have no reason to doubt the evidence on this score. We are, therefore, of the opinion that there is no merit in this appeal. The prosecution has led evidence to explain how these injuries had been suffered. We have no reason to doubt the evidence on this score. We are, therefore, of the opinion that there is no merit in this appeal. It is, accordingly, dismissed.