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2004 DIGILAW 123 (HP)

SUNIL KUMAR v. STATE OF H. P.

2004-06-11

LOKESHWAR SINGH PANTA, R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—The appellant, Sunil Kumar, hereinafter referred to as the accused, upon having been tried for the offence under Section 20, Narcotic Drugs and Psychotropic Substances Act, 1985, (for short : the Act) by the learned Sessions Judge, Chamba, stands convicted of such offence vide judgment dated 28.11.2001 and vide order dated 29.11.2001, he has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of rupees one lac. In default of payment of fine, he has been sentenced to undergo simple imprisonment for a further period of one year. 2. By virtue of the present appeal preferred through jail, the accused has assailed the conviction and sentence as imposed upon him by the learned Sessions Judge. 3. Briefly the facts of the present case may be thus stated. On 9.12.2000 at about 1.15 p.m., ASI Joga Singh (PW-13), the then in-charge of Police Post Banikhet, along with Head Constable Pritam Singh and constable Mazid Mohammad and Des Raj under the supervision of Deputy Superintendent of Police, Dalhousie was carrying out traffic checking at Dhundiara Bungalow. At such time bus bearing No. HP-36-3933 belonging to Messrs. Kamal Bus Service which was coming from Chamba was stopped for checking. During the course of checking of the passengers and luggage, constable Mazid Mohammad observed that the passenger occupying seat No. 20 was concealing something under his clothes. Such passenger was brought out of the bus. He was made to open his pant. On the opening of the pant, one polythene envelope was found tied under the belly with the help of a "Parna" (piece of cloth). When the polythene envelope was opened it was found to contain 2.300 kgs. of "Charas". The said passenger disclosed his name as Sunil Kumar son of Darshan, the accused. Two samples weighing ten grams each were separated from the "Charas" recovered. The two samples and the remaining bulk of "Charas" recovered were separately sealed with the seal "T" and taken into possession by PW-13 ASI Joga Singh. The accused, after disclosing the grounds of arrest, was arrested. "Rukka" was sent to the Police Station for registration of the case. The case property was produced by PW-13 ASI Joga Singh before officating Station House Officer PW-8 ASI Joginder Singh who resealed the same with the seal mark "A". The accused, after disclosing the grounds of arrest, was arrested. "Rukka" was sent to the Police Station for registration of the case. The case property was produced by PW-13 ASI Joga Singh before officating Station House Officer PW-8 ASI Joginder Singh who resealed the same with the seal mark "A". Special report under Section 57 of the Act was sent to the Superintendent of Police, Chamba, on the following day, that is, on 10.12.2000. One sealed packet containing the sample was sent for analysis, which on examination was found to be that of "Charas". On completion of investigation, the accused was sent up for trial. 4. The accused denied the charge and claimed trial. His defence is that of denial simpliciter. He also denied the factum of travelling in the bus on the relevant date at the relevant time. 5. The prosecution in support of its case examined thirteen witnesses in all. No evidence in defence was led by the accused. 6. The learned Sessions Judge on consideration of the evidence coming on record convicted and sentenced the accused as aforesaid. 7. At the very outset it has been contended by the learned Counsel for the accused that the conviction and sentence imposed upon the accused cannot be sustained since in the present case there has been non-compliance of the mandatory provisions contained in Section 50 of the Act. 8. The learned Additional Advocate General, on the other hand, while admitting that Section 50 of the Act was not complied with, contended that Section 50 of the Act was not attracted to the present case since it was a case of chance recovery. 9. Section 50 of the Act in so far as it is material for the present case, reads: "(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1). (2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1). (3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female.” 10. In State of Punjab v. Balbit Singh, (1994) 3 SCC 299, the Honble Supreme Court while dealing with the scope and ambit of Section 50 of the Act, has held that Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. Under the Act wide powers are conferred on the officers and deterrent sentences are also provided for the offences under the Act. The legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution. Section 50 is enacted. When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search. It must therefore, be held that on prior information the empowered officer or authorised officer while acting under Section 41(2) or Section 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. The provisions of Section 50 are thus mandatory. 11. As per the prosecution story when the bus was being checked the accused was found sitting on seat No. 20 by PW-2 constable Mazid Mohammad, he became suspicious as he found the accused trying to conceal something under his clothes. The accused was taken out of the bus and search of his person was carried out by PW-13 ASI Joga Singh. PW-2 constable Mazid Mohammad has deposed in this regard as under : "At about 1.15 p.m. a bus named as Kamal Bus Service No. HP 38-3933 came from Bharmour side which was going to Kangra side. We got this bus stopped and I and Joga Singh started checking the luggage as well as the person of passengers sitting in the bus. When I checked a passenger, sitting at seat No. 20, of the bus, then I found that there was something extra attached to his belly (abdomen). So, I and Joga Singh ASI got that passenger down from the bus and we got the Pant of that passenger removed and beneath his shirt, one "Parna" was found in which a polythene envelope was found containing Charas. Then we asked the name of that passenger who disclosed his name to be Suneel Kumar s/o Darshan Kumar House No. 210, Gali No. 4, Mohalla Shimlapuri, Ludhiana." 12. During the course of cross-examination, he has deposed: "I checked the accused in the bus itself when he was sitting at seat No. 20. His Pant was removed outside the bus in the presence of Dy. S.P. also.” 13. PW-13 ASI Joga Singh, who conducted the search of the person of the accused, has deposed : "When Mazid Mohd. During the course of cross-examination, he has deposed: "I checked the accused in the bus itself when he was sitting at seat No. 20. His Pant was removed outside the bus in the presence of Dy. S.P. also.” 13. PW-13 ASI Joga Singh, who conducted the search of the person of the accused, has deposed : "When Mazid Mohd. checked the passenger who was sitting at seat No. 20 of the bus, he found that there is something extra attached to the rear portion of his belly and therefore, that person was got down from the bus and his search was taken in the presence of Dy S.P. Mazid Mohd., Shashi Pal and Saunki Ram passenger and the pant of the accused was removed and it was found that a polythene bag was wrapped in a Parna and when the Pama was removed and polythene envelope was opened then we found that there was Charas in the polythene envelope." 14. Relying upon the above evidence, it has been contended by the learned Additional Advocate General that during the course of random search and checking of the passengers and their luggage in the bus, the investigation officer had stumbled upon the contraband and as such it being a case of chance recovery, provisions of Section 50 of the Act, were not attracted since the police officer conducting the search had no personal knowledge or information of, or reason to believe about the presence of the accused with the contraband in the bus. 15. True it may be that random search and checking of the bus was being carried out by the police at the relevant time, but once the accused was taken out of the bus as a suspect by PW-2 constable Mazid Mohammad and produced before PW-13 A.S.I. Joga Singh for the purpose of carrying out a search, it cannot be said that the search of the person of the accused outside the bus by PW-13 was without prior information or without reason to believe that the accused might be in possession of some contraband. In fact, there has been search in the present case at two stages. Once there was a general body search by PW-2 constable Mazid Mohammad in the bus itself. The actual search was carried out outside the bus by PW-13 ASI Joga Singh. In fact, there has been search in the present case at two stages. Once there was a general body search by PW-2 constable Mazid Mohammad in the bus itself. The actual search was carried out outside the bus by PW-13 ASI Joga Singh. It was on the basis of positive suspicion on the part of PW-2 Constable Mazid Mohammad that the accused might be carrying some contraband that he was taken out of the bus for the purpose of search by PW 13 ASI Joga Singh in the presence of PW-12 Deputy Superintendent of Police Gulab Singh. Therefore, it cannot be said to be a case of chance recovery. PW 13 ASI Joga Singh was required to comply with the mandatory provisions of Section 50 of the Act before making the search. Since, admittedly, the mandatory provisions of Section 50 of the Act were not complied with, the conviction and sentence imposed upon the accused cannot be sustained and are liable to be set aside. 16. In Md. Sarfraj v. State of Bihar, 2004 (1) Crimes 491, during the course of random and routine check of a train at Sitamarhi Railway Station the custom officials noticed a frightened posture of a passenger. His body search revealed that some article in wrapper was tied around his waist. The said passenger was then taken to customs office where in the presence of two independent witnesses and Superintendent of Customs, he was formally searched. On such search three packets wrapped in polythene bag kept in markin cloth stitched like a "Jholla" were found tied around his waist. The three packets were found to contain 1.5 kgs. of charas. The trial Court convicted and sentenced the said passenger under Section 20 of the Act. On appeal the High Court of Patna by holding that Section 50 of the Act was attracted to the facts of the case and since the provisions thereof were not complied with, set aside the conviction and sentence imposed upon the said passenger. The contention raised on behalf of the prosecution that it was a case of chance recovery and as such Section 50 of the Act was not attracted was repelled. 17. The facts involved in the above case and in the present case are similar to a large extent and the ratio laid down therein is fully applicable to the facts of the present case. 18. 17. The facts involved in the above case and in the present case are similar to a large extent and the ratio laid down therein is fully applicable to the facts of the present case. 18. For the foregoing reasons, the appeal is allowed. The conviction and sentence imposed upon the accused by the learned Sessions Judge, Chamba, are set aside and the accused is acquitted of the offence under Section 20 of the Act. 19. The accused, who is in jail undergoing sentence, shall be released forthwith, if not required in any other case. The amount of fine, if already paid, shall be refunded to the accused. Case property be dealt with as per direction of the learned trial Court.