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2004 DIGILAW 782 (PNJ)

Mangi Lal v. State of Haryana

2004-07-28

S.S.SARON

body2004
JUDGMENT S.S. Saron, J. - This order will dispose of Criminal Appeals No. 399-SB of 1992 and 404-SB of 1992 as they have been filed by the same appellant Mangi Lal. Criminal Appeal No 399-SB of 1992 has been filed through jail and Criminal Appeal No. 404-SB of 1992 has been filed through counsel against the judgment and order dated 2.9.1992 passed by the learned Additional Sessions Judge, Panipat whereby the appellant has been convicted for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act for short) and sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 1 lac failing which he has to further undergo rigorous imprisonment for two years. 2. Case FIR No. 503 dated 12.10.1988 was registered at Police Station City Panipat for the offence under Section 18 of the Act on the allegations that Krishan Chander ASI, Police Station City Panipat along with other police officials were present near the Gate of Octroi Post of Bus Stand, Panipat. Per chance Liakat Ali Numberdar, resident of Raj Majra and Shafi Mohd., resident of Garhi Basak, Police Station Sadar Panipat met him. He was just talking with them, then a person, whose name and place of residence later came to be known as Mangi Lal (appellant), resident of Piplia Kulmi, Police Station Machalpur, Tehsil Khilchipur, District Raj Garh (MP), was seen coming from the side of the G.T. Road holding black colour bag in his right hand. On seeing the police party, the appellant at once turned back by taking speedy steps. On suspicion being raised, the Assistant Sub-Inspector of Police along with the help of police officials apprehended him and asked whether he wanted to get himself personally searched before a gazetted officer. He desired to be searched before the ASI, who conducted personal search of the appellant. The bag of the appellant, which he was holding in his right hand, was checked and opium wrapped in polythene envelope was recovered from between the clothes lying in his bag. On weighing the same, it was found to be 2 kilograms. One hundred grams of opium was taken out separately from the recovered opium as sample and the same was made into a sealed parcel after placing it in a small tin box. On weighing the same, it was found to be 2 kilograms. One hundred grams of opium was taken out separately from the recovered opium as sample and the same was made into a sealed parcel after placing it in a small tin box. The remaining opium was placed in a tin box and parcel was prepared. Both the parcels were sealed with the seal of "KC" along with the bag. These parcels were taken to the Police Station vide memo. The seal after use was handed over to witness Liakat Ali. The accused was found to have committed an offence under Section 18 of the Act by keeping in his possession 2 kilograms opium. Accordingly, writing was sent to the Police Station for registration of case through Constable Ajit Singh No. 1081. On the basis of the said writing, as already noticed, FIR Ex. PD/1 was registered. The Police after investigating the case filed charge-report (challan) in the Court of Sub Divisional Judicial Magistrate, Panipat, who vide his order dated 7.3.1991 committed the case to the Court of Session as the offence attributed the appellant was triable by the said Court. The learned Additional Sessions Judge, to whom the case was assigned, charged the appellant on 1.4.1991 on the allegations that he on 12.10.1988 in the area of Police Station City Panipat was carrying 2 kilograms of opium and thereby committed an offence punishable under Section 18 of the Act. The appellant pleaded not guilty to the charge and claimed trial. 3. The prosecution in order to prove its case examined HC Om Parkash No. 106 (PW-1), who tendered his evidence by way of affidavit Ex./PA. Constable Sunder Lal No. 342 (PW-2) also tendered his affidavit Ex. PB. Inspector Kidar Singh, CID Crime, Rohtak (PW-3), stated that he was posted as Inspector/SHO Police Station City Panipat and after completion of investigation of the case, he prepared his report under Section 173 of the Code of Criminal Procedure, 1973 (Criminal Procedure Code for short) and put up the challan under Section 18 of the Act. The aforesaid three PWs were not cross-examined by the appellant. HC Dhan Raj No. 192, Police Station City Panipat (PW-4) was examined who gave the details of the occurrence. He was cross-examined by the defence. ASI Krishan Chander, Police Station City Jind (PW-5) was also examined by the prosecution. The aforesaid three PWs were not cross-examined by the appellant. HC Dhan Raj No. 192, Police Station City Panipat (PW-4) was examined who gave the details of the occurrence. He was cross-examined by the defence. ASI Krishan Chander, Police Station City Jind (PW-5) was also examined by the prosecution. Liakat Ali, PW was given up as having been won over. Besides, Shafi Mohd. PW was also given up as having been won over by the accused. Gurdial Singh, PW was given up as unnecessary. The prosecution closed its case on 11.6.1991. The statement of the appellant in terms of Section 313 Criminal Procedure Code was recorded in which he pleaded that he was innocent. He also made a statement to the effect that he does not want to lead any evidence in his defence. 4. The learned Additional Sessions Judge after considering the evidence and materials on record convicted the appellant and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1 lac. The said order, as already noticed, is assailed in this appeal. 5. It is appropriate to note that the contraband which was recovered from the appellant was sent to the Forensic Science Laboratory, Haryana at Madhuban (Karnal) and vide its report Ex. PF it was opined that the contents were opium and the Morphine percentage was found to be 4.62%. 6. Learned counsel for the appellant has contended that the offer of search made to the appellant was a partial offer, inasmuch, the appellant was not given an offer to get himself searched in the presence of a Magistrate also and he was not informed that he had a right in that behalf to get himself searched in the presence of a Magistrate or a gazetted officer. Therefore, there being partial offer of search, the appellant is liable to be acquitted. In support of his contention, the learned counsel have replied upon the judgment of this Court in Hanuman v. State of Haryana, 2004(1) RCC 202. 7. In response, learned counsel for the State has contended that the provisions of Section 50 of the Act come into operation only when the person of the accused is to be searched. In the case in hand the accused was carrying a bag, therefore, the ratio of the judgment is not applicable to the facts of the present case. 8. In response, learned counsel for the State has contended that the provisions of Section 50 of the Act come into operation only when the person of the accused is to be searched. In the case in hand the accused was carrying a bag, therefore, the ratio of the judgment is not applicable to the facts of the present case. 8. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. It is appropriate to note that the appellant was carrying a bag Ex. P-2 in his hand. The provisions of Section 50 of the Act read as under :- "50. Conditions under which search of persons shall be conducted. - (1) When any office 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). (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. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy thereof to his immediate official superior." 9. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within a seventy-two hours send a copy thereof to his immediate official superior." 9. The provisions of sub-section (1) of Section 50 of the Act shows that when any officer duly authorised under Section 42 of the Act 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. The emphasis is on the words "is about to search any person". Therefore, it is only when "the person" of an accused is to be searched that he is required to be informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate. The Honble Supreme Court in Kalema Tumba v. State of Maharashtra and another, AIR 2000 Supreme Court 402, considered this aspect and it was observed that it is only when a person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a gazetted officer or a Magistrate. Besides, it was observed that as rightly pointed out by the High Court search of the baggage of a person is not the same thing as search of the person himself. A reference was made to an earlier judgment of the Honble Supreme Court in State of Punjab v. Baldev Singh, AIR 1999 Supreme Court 2378, wherein it was held that the requirement of informing the accused about his right under Section 50 of the Act comes into existence only when the person is to be searched. A similar view was taken by the Honble Supreme Court in Gurbax Singh v. State of Haryana, AIR 2001 Supreme Court 1002. The judgment in Kalema Tumbas case (supra) was reiterated and it was held that only when "the person" of an accused is to be searched that he is required to be informed of his right to be examined in the presence of a gazetted officer or a Magistrate. The judgment in Kalema Tumbas case (supra) was reiterated and it was held that only when "the person" of an accused is to be searched that he is required to be informed of his right to be examined in the presence of a gazetted officer or a Magistrate. A reference was made to the Constitutional Bench decision in Baldev Singhs case (supra), wherein it was observed as follows :- "On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc." 10. In Gurbax Singhs case (supra), the appellant therein was sitting in the compartment of a train when the Police Officials came for checking smuggling and other anti-social elements. The appellant therein, who was sitting in the compartment became panicky and left the train from the door towards the side of engine carrying a katta (gunny bag) on his left shoulder and on suspicion, he was nabbed. In this context it was observed that in view of the decision of the Constitutional Bench in Baldev Singhs case (supra), no further discussion was required on this aspect. Therefore, it is evident that the provisions of Section 50 of the Act come into effect when the person of the accused is to be searched. 11. In the case of Hanuman v. State of Haryana (supra) relied upon by the learned counsel for the appellant, a reference has been made to two decisions of the Honble Supreme Court in Abdul Rahiman v. State of Kerala, 2002(3) RCR(Crl.) 404 and Vinod v. State of Maharashtra, 2003(3) RCR(Crl.) 243 and on the strength of the same it was observed that in Abdul Rahimans case (supra) it was also held that where the accused was given a chance of search before gazetted officer or senior officer only and not before the Magistrate, then the offer is not valid as envisaged under Section 50 of the Act and as such conviction was set aside. Besides, in Vinods case (supra) it was held that even if offer of search was given before Magistrate or gazetted officer to the accused but that is not complete unless he was informed that he had a right in that behalf. Besides, in Vinods case (supra) it was held that even if offer of search was given before Magistrate or gazetted officer to the accused but that is not complete unless he was informed that he had a right in that behalf. However, in Abdul Rahimans case (supra), it is appropriate to note that the search of the appellant therein was conducted on his person and it was found that inside the fold of the Dhoti, which the appellant was wearing, opium had been concealed in a polythene bag. Therefore, it was the person of the accused therein who was searched and the contraband was found in the fold of the Dhoti. In Vinods case (supra) also the accused therein was found in possession of 120 mg. of brown sugar which was also on the person of the accused therein. Therefore, the proposition as enunciated in Hanumans case (supra) is applicable in case the person of the accused is to be searched. However, in the case in hand, as already noticed, the appellant was carrying a bag in his right hand and, therefore, in view of the provisions of Section 50 of the Act and in view of the judgments of the Honble Court in Kalema Tumbas case (supra) and Gurbax Sinths case (supra), the person of the accused was not required to be searched and, therefore, there is no question of giving any partial offer to the appellant. No other point has been argued. In the circumstances, there is no merit in these appeals and the same are accordingly dismissed. Appeals dismissed.