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2003 DIGILAW 1310 (PNJ)

Sukhwinder Singh v. State of Punjab

2003-09-17

MEHTAB S.GILL

body2003
JUDGMENT Mehtab S. Gill, J. - This common judgment will dispose of Cr. A. Nos. 426-SB and 331-SB of 1989. 2. The case of prosecution is that on 28.6.1987 Inspector Karnail Singh along with other police Officials were going from Moga to Talwandi Dowanjh. Whey they reached the crossing of Talwandi Bhangarian-Doshanjh, a bullock-cart was seen coming from the opposite side. Appellant Sukhwinder Singh was driving the cart, whereas his co-accused Kuldip Singh and Balbir Singh were sitting on bags which were on the cart. On seeing the police party, appellants Kuldip Singh and Balbir Singh ran away. Appellant Sukhwinder Singh was apprehended. 18 bags of poppy-husk each weighing 45 kilograms were recovered from appellant Sukhwinder Singh. 3. The prosecution in order to prove its case, brought into the witness-box PW-1 ASI Surjit Singh, PW-2 Inspector Karnail Singh and tendered into evidence the report of the Chemical Examiner Ex.PD and the affidavit Ex.PE of M.H.C. Sukhdev Singh and of Constable Natha Singh Ex.PF. 4. Appellant Sukhwinder Singh in his statement under Section 313 Criminal Procedure Code, stated that Inspector Karnail Singh has falsely implicated him, because there is a land dispute pending with his relatives. Appellant Kuldip Singh has also been falsely implicated, because he (sic) his brother. 5. Appellant Balbir Singh took the plea that a false case has been foisted upon him also, as he had enmity with Inspector Karnail Singh. 6. I have heard learned counsel for the appellants and the learned counsel for the State and perused the trial Court file, with their assistance. 7. At the every outset, learned counsel for the appellants has stated that, provisions of Section 50 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred to as the Act), which are mandatory in nature, have not been complied with. 8. Learned counsel for the State has stated that there was no need for complying with the provisions of Section 50 of the Act, as it was a chance recovery and thus, no offer of search was needed to be given. 9. No where in the statements of the witnesses, especially the Investigation Officer Inspector Karnail Singh (PW-2), it has come out that, offer of search was made, to appellant Sukhwinder Singh. 10. 9. No where in the statements of the witnesses, especially the Investigation Officer Inspector Karnail Singh (PW-2), it has come out that, offer of search was made, to appellant Sukhwinder Singh. 10. Learned counsel for the appellants has drawn my attention to a judgment of the Honble Supreme Court in Ali Mustaffa v. State of Kerala AIR 1995 Supreme Court 244, wherein it was held, that compliance of the provisions of Section 50 of the Act is mandatory. The Police Officer before arresting the accused, must give him option to be searched in the presence of a Gazetted Officer. 11. Learned counsel for the appellants has further drawn my attention to another decision of the Honble Supreme Court in Mohinder Kumar v. The State, Panaji, Goa, 1995(2) R.C.R. 599, wherein the Honble Supreme Court held that in case of chance recovery of contraband, mandatory provisions of Sections 42, 50 of the Act are to be followed as and when the Officer comes to believe, that the accused persons were in possession of narcotic drugs. 12. In the present case, the police party which was headed by Inspector Karnail Singh, stopped the cart of the three appellants. The appellants were sitting on gunny bags. When the two appellants ran away from the place of occurrence, the Investigating Officer must have got suspicious, that the appellants have something illegal with them in the gunny bags. At that moment, he must be apprehending that the gunny bags must be containing some contraband. From that moment, it was incumbent upon the Investigating Officer (PW-2) Inspector Karnail Singh to follow the mandatory provisions of Section 50 of the Act. 13. Learned counsel for the appellants has drawn my attention to a judgment of the Honble Supreme Court in State of Punjab v. Baldev Singh, (1999)6 S.C.C. 172, wherein the Honble Supreme Court held that it was imperative for the Investigating Officer to inform the suspect, orally or in writing, about his right to be searched before a Gazetted Officer or a Magistrate. The Court must be satisfied about the due compliance of the provisions of Section 50 of the Act. The prosecution should get opportunity to establish such compliance. Section 50 of the Act embodies reasonable, fair and just procedure that must be honoured. 14. There is no compliance of the mandatory provisions of Section 50 of the Act. The Court must be satisfied about the due compliance of the provisions of Section 50 of the Act. The prosecution should get opportunity to establish such compliance. Section 50 of the Act embodies reasonable, fair and just procedure that must be honoured. 14. There is no compliance of the mandatory provisions of Section 50 of the Act. As discussed above, at the stage when the Investigating Officer had apprehensions, that the accused had got contraband in the bags, he was duty bound to give an offer of search by a Gazetted Officer or a Magistrate to appellant Sukhwinder Singh. This was not done. 15. As the mandatory provisions of the Act have not been complied with, the appeals are accepted. The judgment of conviction and sentence passed by the learned Additional Sessions Judge, Faridkot dated 1.8.1989 is set aside. The appellants are acquitted of all the charges. Appeals allowed.