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2004 DIGILAW 1142 (PNJ)

Zile Singh v. State Of Haryana

2004-10-06

JASBIR SINGH

body2004
Judgment Jasbir Singh, J. 1. Vide judgment and order dated 9.9.1992 and 10.9.1992, respectively, appellant was convicted for commission of an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) for keeping in his possession 8 Kgs. of poppy straw without any permit or licence. He was sentenced to undergo RI for a period of ten years. Hence, this appeal. 2. In brief, it was case of the prosecution that on 18.6.1991, a police party, headed by Lakshmi Narain, ASI, Police Station City Kaithal was present near bus stand. Appellant/accused came there carrying a plastic bag on his head. On suspicion, he was stopped and told that the investigating officer intended to search him and he had an option to get himself searched by him or before a gazetted officer. Appellant/accused opted for search by a gazetted officer. Police party along with accused proceeded towards the office of DSP (Headquarters), who met them on the way. On search being conducted, 8 kgs. of poppy husk was recovered from the bag of the appellant. Sample was prepared as per rules and sent for chemical examination. On completion of investigation and receipt of report of chemical examiner, final report was submitted in Court for trial. On being charge-sheeted, appellant pleaded not guilty and claimed trial. Prosecution then led evidence to prove his guilt and brought on record oral as well as documentary evidence. 3. On completion of prosecution evidence, statement of the appellant/accused was recorded under Section 313 Cr.P.C., wherein he denied all the allegations appearing against him in prosecution evidence and claimed false implication. He had further stated that nothing was recovered from him. However, despite opportunity given, he led no evidence in defence. Trial Court, on appraisal of evidence, found him guilty, convicted and sentenced him, as found mentioned in para 1 of this judgment. 4. Mr. Nagpal, appearing for the appellant, by referring to the testimony of PW-3, the investigating officer, has stated that there was non-compliance with the provisions of Section 50 of the Act. Offer for search made to the appellant was partial and was not complete. He prayed that in view of this, appellant deserves acquittal. He has further referred to certain discrepancies in the statements of prosecution witnesses regarding mode and manner of recovery allegedly effected from the appellant. Offer for search made to the appellant was partial and was not complete. He prayed that in view of this, appellant deserves acquittal. He has further referred to certain discrepancies in the statements of prosecution witnesses regarding mode and manner of recovery allegedly effected from the appellant. He has further submitted that the witnesses are discrepant so far as time of recovery is concerned. 5. To support his contention, Mr. Nagpal has placed reliance upon a judgment of Full Bench of this Court in Criminal Appeal No. 312-SB of 1995 decided on 19.8.2004 titled as Mohan Singh v. State of Punjab, 2004(4) RCR(Crl.) 260 (P&H) wherein it has been held that search from a bag, being carried by an accused, would amount to search of his person and if offer for search is partial, benefit of the same can be given to an accused. Counsel has further submitted that the appellant had already remained in jail for about eight months during trial and after his conviction. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charges. 6. Arguments raised by counsel for the appellant have vehemently been opposed by Mr. Nehra. He has stated that since the alleged recovery of 8 Kgs. of poppy husk was made from a bag, as such, appellant is not entitled to claim benefit of the provisions of Section 50 of the Act. Recovery was not effected from his personal search. He has further stated that the discrepancies, as indicated by the appellant, were minor and not fatal to the case of the trial Court. By referring to the statements of PWs, State counsel has argued that the conviction and sentence awarded was justified. He prayed that appeal, having no substance be dismissed. 7. It is an admitted fact that when apprehended, appellant was carrying a bag in his hands. On suspension, he was stopped and search was conducted by DSP (PW-1). Under similar circumstances, Full Bench of this Court in Mohan Singhs case (supra) has held that search from a bag being carried by accused would amount to personal search and the accused would be entitled to claim benefit of provisions of Section 50 of the Act. On suspension, he was stopped and search was conducted by DSP (PW-1). Under similar circumstances, Full Bench of this Court in Mohan Singhs case (supra) has held that search from a bag being carried by accused would amount to personal search and the accused would be entitled to claim benefit of provisions of Section 50 of the Act. Full Bench of this Court, after discussing provisions of Section 50 of the Act and various judgments of Honble Supreme Court, has opined as under :- "The possession of the narcotic(s) or psychotropic substance(s) should be a visible possession and must be on the person of the suspected individual. Holding and retention of the substance in ones control directly relatable to the body of the individual, would be search of the person. Once the bag or an article is at any distance and is not directly held by the individual, the protection available under Section 50 of the Act would be of no relevant consideration. The possession has to be conscious possession and possession of such a material which is punishable under the statute, then charged person must be in control over it and has the right to exclude others. It would be limited to personal custody." 8. As per evidence of the investigating officer (PW-3), at the time when the appellant was stopped he was carrying a bag Ex. P-1 and was coming out from the bus stand. In his statement this witness had categorically stated that on being stopped appellant/accused was given an option as to whether he intended to get himself searched from the investigating officer or through a gazetted officer. 9. This Court feels that the offer made was not as per the provisions of Section 50 of the Act which envisages that a suspect has an option to be searched before a Magistrate or a gazetted officer. 10. In this case, it is apparent from the evidence on record that the appellant/accused was never informed that he had the right to get himself searched before a Magistrate. 10. In this case, it is apparent from the evidence on record that the appellant/accused was never informed that he had the right to get himself searched before a Magistrate. Full Bench of this Court in Mohan Singhs case (supra), after noticing provisions of Section 50 of the Act, has opined as under :- "The result of the above discussion is that it is obligatory upon the investigating officer to give complete offer to the suspect upon whom he proposes to conduct personal search and where the suspect exercises (sic) conduct the search in presence of the gazetted officer or the Magistrate, as the case may be. The offer must be complete but essentially need not be in writing." 11. During arguments, counsel for the appellant informed this Court that appellant had already undergone eight months of imprisonment during trial and after his conviction. He further informed that appellant is 64 years of age. 12. In view of harsher provisions of the Act, strict compliance is needed so far as the provisions regarding search and seizure are concerned. There is non-compliance with the provisions of Section 50 of the Act, as such, this Court feels that appellant is entitled to be acquitted. Accordingly, judgment and order under challenge are set aside and appellant is acquitted of the charges framed against him.