Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 917 (PNJ)

Pure Lal v. State of Haryana

2004-08-18

SATISH KUMAR MITTAL

body2004
JUDGMENT Satish Kumar Mittal, J. - This appeal has been filed by Pure Lal accused against his conviction under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and sentence to undergo RI for ten years and to pay a fine of Rs. 1 lakh, failing which to further undergo RI for two years, awarded to him vide order passed by the learned Additional Sessions Judge, Panipat dated 8.4.1992. 2. As per prosecution version, on December 25, 1989 the appellant was apprehended by the police party headed by Inspector-Kidar Singh Rathi (PW-5) and other police officials including HC-Dhan Raj (PW-4), when he was carrying a bag in his hand. On seeing the police party, the appellant tried to flee. The police party suspected that he had some contraband articles in the bag carried by him. Inspector-Kidar Singh Rathi had asked the appellant that he wanted to search his person and if the appellant so desired, his personal search could be conducted by a Gazetted Officer. The appellant in his statement Ex PD had expressed confidence in the Inspector-Kidar Singh Rathi and desired that the search could be conducted by the Inspector himself. Thereupon the search was conducted, as a result of which, 5 kgs. of opium was recovered from the plastic bag Ex. P-2 and consequently, Recovery Memo, Exhibit PC was prepared. A sample was taken from the seized contraband and the same was sent for analysis, which was found to be opium. Consequently, prosecution was launched against the appellant. 3. In support of its case, the prosecution examined five witnesses including PW-3 Mohinder Kumar, independent witness to the recovery, PW-4 HC-Dhan Raj and PW-5 Inspector-Kidar Singh Rathi, official witnesses. On the basis of evidence led by the prosecution, the appellant was convicted for illegally possessing 5 kgs. opium under Section 18 of the Act and sentenced for ten years with fine, as indicated above. 4. On the basis of evidence led by the prosecution, the appellant was convicted for illegally possessing 5 kgs. opium under Section 18 of the Act and sentenced for ten years with fine, as indicated above. 4. Learned counsel for the appellant made the following three submissions to assail the conviction and sentence awarded to the appellant : (i) That, the mandatory requirements of Section 50 of the Act have not been complied with while conducting the personal search of the appellant; (ii) PW-3 Mohinder Singh was not an independent and reliable witness and in spite of the fact that a number of other independent witnesses were available on the spot, the police did not associate anyone of them, as independent witness; and (iii) The case property i.e. 5 kgs. of opium allegedly recovered from the possession of accused was not deposited in the Malkhana which indicates that there was no recovery of the alleged contraband from the appellant. 5. Learned counsel for the appellant pointed out that in this case there is no compliance of mandatory provisions of Section 50 of the Act by the police as the offer made by PW-5 Inspector-Kidar Singh Rathi to the appellant for his personal search was a partial offer. The said Inspector had only asked the appellant that he had the choice to be searched before a gazetted officer. He did not offer the appellant that he had the choice of search before a gazetted officer or before a Magistrate. In support of his contention, learned counsel for the appellant relied upon a decision of the Apex Court in Abdul Rahiman v. State of Kerala, 2002(3) RCR(Crl.) 404 (SC), wherein it was held as under : "5. In this case..... the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The compliance of Section 50 is held to have been fulfilled on his (PW-1) asking the accused "whether I should search him in the presence of senior officers or Gazetted Officer". The accused was required to be apprised of his right conferred under Section 50 giving him the opinion to search being made in presence of Gazetted Officer or the Magistrate. The accused was required to be apprised of his right conferred under Section 50 giving him the opinion to search being made in presence of Gazetted Officer or the Magistrate. The accused is not shown to have been appraised of his right nor any option offered to him for search being conducted in the presence of the Magistrate. 6. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted." 6. The learned counsel for the appellant further submitted that police officer is also required to intimate the accused, before conducting his search, that he has a legal right to get his personal search done before a gazetted officer or a Magistrate. This has not been intimated to the accused in the instant case, as such, there is another violation of mandatory provisions of Section 50 of the Act. Therefore, the conviction is liable to be set aside on this ground alone. In support of this contention, learned counsel for the appellant relied upon a decision of the Honble Supreme Court in Vinod v. State of Maharashtra, 2003(3) RCR(Crl.) 243 (SC), where in somewhat similar circumstances the accused was asked if he desires, his search will be taken in the presence of an Executive Magistrate or a Gazetted Officer and he replied in the negative. In the said decision, the Honble Apex Court held as under :- "7. The law enunciated by this Court in K. Mohanan is clear as to the manner in which Section 50 of the Act has to be complied with. Before conducting the search the Police Officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a Gazetted Officer for the purpose of the search but inform him of his right in that behalf under the law. The recital in Exhibit 38 and Exhibit 39 does not indicate the same. In that view of the matter, we set aside the findings recorded by the High Court that there was compliance with Section 50 of the Act. The recital in Exhibit 38 and Exhibit 39 does not indicate the same. In that view of the matter, we set aside the findings recorded by the High Court that there was compliance with Section 50 of the Act. The view of the trial Court that non-compliance with Section 50 of the Act does not prejudice the accused cannot be sustained for the requirement of the section is mandatory. If Exhibit 38 and Exhibit 39 cannot be used to establish search of the person of the accused, his possession of brown sugar is not proved. Hence we set aside the order of the trial Court as affirmed by the High court. The appeal is allowed accordingly." 7. In view of his aforesaid submissions learned counsel for the appellant contended that the mandatory requirements as provided in Section 50 of the Act have not been complied with in the instant case and non-compliance thereof will have to result into acquittal of the appellant. While referring to the Constitutional Bench decision of the Honble Apex Court in State of Punjab v. Baldev Singh, AIR 1999 Supreme Court 2378, learned counsel for the appellant further contended that right of the accused to be personally searched before a Gazetted Officer or a Magistrate if the suspected accused so requires, is an extremely valuable right which the legislature has given to the concerned person having regard to the grave consequences that may entail the possession of illicit articles under the Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. Therefore, the safeguards/protection provided to the accused under the provisions of Section 50 of the Act must be scrupulously followed and any violation of the same must be seriously viewed by the higher authorities inviting action against the concerned officials. Therefore, in such a case where the mandatory provisions of Section 50 of the Act have not been complied with, the conviction of the accused cannot be sustained. 8. Regarding his second contention, learned counsel for the appellant referred to the statement of PW-3 Mohinder Kumar where he has stated that when the appellant was apprehended while carrying a plastic bag in his hand, by the police, several other persons had gathered on the spot. 8. Regarding his second contention, learned counsel for the appellant referred to the statement of PW-3 Mohinder Kumar where he has stated that when the appellant was apprehended while carrying a plastic bag in his hand, by the police, several other persons had gathered on the spot. It was further stated by this witness that that he was known to Inspector-Kidar Singh Rathi and on the date of occurrence was going to police station to meet him. On the basis of the said statement, learned counsel for the appellant argued that PW-3 Mohinder Kumar was not an independent witness as he was known to the Inspector-Kidar Singh Rathi. When other several independent witnesses were available on the spot, the police should have associated some independent witness. Since it was not done, therefore, the statement of PW-3, who is not an independent witness, cannot be relied upon, and conviction of the appellant on the basis of his statement is not safe. Thus, conviction is liable to be set aside on this ground as well. 9. Regarding his third contention, learned counsel for the appellant referred to the document Ex. PA, an affidavit of Head Constable Prithvi Raj, which indicates that he deposited in the Malkhana only the sample of the opium weighing 200 grams. Learned counsel for the appellant submitted that there is no evidence on the record which establishes that 5 kgs. opium which was allegedly recovered from the possession of the appellant, was deposited in the Malkhana. This fact belies the whole story of the prosecution that 5 kgs. opium was recovered from the possession of the appellant. 10. Per contra, learned counsel for the respondent-State submitted that in the instant case the provisions of Section 50 of the Act are not applicable for two reasons. Firstly, that in this case the police did not arrest or search the appellant on any prior information. The police was having no information that the accused was likely to come there with narcotic substance nor the police Inspector-Kidar Singh Rathi had any reason to believe from his personal knowledge or information that the accused was likely to be in the area from where the contraband was recovered. Even at the time of conducting search, he had no knowledge that the accused has committed an offence under the Act. Even at the time of conducting search, he had no knowledge that the accused has committed an offence under the Act. In this case the appellant on seeing the police party started running, which created suspicion in the mind of the Police Inspector. In such a situation, learned counsel for the respondent-State contended that provisions of Section 50 of the Act are not applicable. In support of his contention, learned counsel relied upon the decision of the Honble Apex Court in State of Punjab v. Baldev Singh, 1999(6) SCC 172 and Bharatbhai Bhagwanjibhai v. State of Gujarat, 2002(8) SCC 327. 11. Secondly, the learned counsel contended that in the instant case, the provisions of Section 50 of the Act are not applicable to a situation where the search undertaken is not of the person of the accused but something carried in his hand. He submitted that in the instant case, the bag was being carried by the appellant in his hand when the police officer asked for the search of the same. In such a situation, the provisions of Section 50 of the Act are not applicable as held by the Honble Apex Court in State of Punjab v. Makhan Chand, 2004(3) RCR(Crl.) 1 (SC) wherein after considering aforesaid two decisions by the Honble Apex Court, the provisions of Section 50 of the Act were held to be not applicable to a situation where search undertaken is not of a person but of tin carried by the accused in his hand in which the seized contraband was recovered. 12. In regard to the second contention of the learned counsel for the appellant, the learned State counsel submitted that PW-3 Mohinder Kumar was an independent witness and the seized contraband was recovered from the appellant in his presence. He submitted that merely because the said witness was known to the Investigating Officer or some other independent witnesses were also available, would not render the recovery and seizure proceedings conducted by the police, as invalid. 13. Regarding the third contention, learned counsel for the State submitted that PW-5 in his statement has specifically stated that the seized contraband was duly deposited in the Malkhana and on this point no cross-examination was made by the appellant. Thus, there is no force in this contention raised on behalf of the accused-appellant. 14. 13. Regarding the third contention, learned counsel for the State submitted that PW-5 in his statement has specifically stated that the seized contraband was duly deposited in the Malkhana and on this point no cross-examination was made by the appellant. Thus, there is no force in this contention raised on behalf of the accused-appellant. 14. The undisputed factual position which emerges from the record of the case in hand is that on 25.11.1989 a police party headed by Inspector-Kidar Singh Rathi was present close to a liquor vend on the road leading to Sukhdev Nagar, Panipat near the bus stand, when appellant Pure Lal with a bag in his hand was going from the bus stand side to Sukhdev Nagar along with his wife. On seeing the police party, he along with his wife tried to retrace and flee from the scene. Thereupon, Inspector-Kidar Singh Rathi with the help of the other police officials and in the presence of witness Mohinder Singh caught hold of the accused-appellant. Suspecting some contraband in the plastic bag being carried by the appellant-accused, the said Inspector asked the accused that he wanted to get his bag and person searched and if he so desires, his personal search can be taken before a Gazetted Officer. Undisputedly, the Inspector had offered the accused his search to be taken only before the Gazetted Officer and not before the Magistrate. The appellant accused made the statement Exhibit-PD whereby he expressed his confidence in the Inspector stating that he himself may take the search. As such, the search was conducted by the Inspector in the presence of the independent witness and during the search, 5 kgs. of opium was recovered from the plastic bag, Exhibit P-2, which was being carried by the accused appellant. The said contraband had been kept by him in a wax paper and the wax paper had been kept in a brown coloured raxine bag, Exhibit P-3. Undisputedly, the contraband recovered from the plastic bag, Exhibit P-2, was found to be opium. It is also clear from the evidence that while putting in the offer of search before the Gazetted Officer, the Investigating Officer did not intimate the accused that he was having a legal right to be searched before a Gazetted Officer or before a Magistrate. 15. It is also clear from the evidence that while putting in the offer of search before the Gazetted Officer, the Investigating Officer did not intimate the accused that he was having a legal right to be searched before a Gazetted Officer or before a Magistrate. 15. In the aforesaid undisputed factual background the issue as to whether the provisions of the Act are applicable to the facts and circumstances of the instant case or not, is no longer res integra. In State of Punjab v. Baldev Singh (supra), the Honble Supreme Court has held as under :- "12. 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. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted." 16. In another decision in Bharatbhai Bhagwanjibhai (supra), the Honble Apex Court took the view that Section 50 provides that if the search is to be conducted by an officer duly authorised under Section 42 and the search is about to be conducted under the provisions of Section 41, 42 or 43, the officer concerned does owe a duty to intimate the person to be searched that if the latter so requires, he would be taken to the nearest gazetted officer or to the nearest Magistrate for the purpose of having the search in his presence. But in the event of a situation otherwise, as in the contextual facts viz. the accused on seeing the patrolling police party started running, which excites the suspicion of the police party, as a result of which, he is apprehended and searched, the question of compliance with the safeguards prescribed under Section 50 of the Act would not arise. But in the event of a situation otherwise, as in the contextual facts viz. the accused on seeing the patrolling police party started running, which excites the suspicion of the police party, as a result of which, he is apprehended and searched, the question of compliance with the safeguards prescribed under Section 50 of the Act would not arise. It was further held that where there was no prior information to the police Inspector that the accused was likely to come with a narcotic substance nor the Inspector had any reason to believe from his personal knowledge or information that the accused was likely to be in the area from where he was found with the contraband item and even at the time of effecting search, there was no knowledge that an offence under the Act had been committed by the accused, in such a situation provisions of Section 50 of the Act are not applicable. Thus, in view of the law laid down by the Honble Supreme Court, I am of the opinion that there is no force in the first contention raised by the learned counsel for the appellant and accordingly, the provisions of Section 50 of the Act are held to be not applicable in the facts and circumstances of the case. 17. Regarding second question whether the provisions of personal search of the accused as laid down in Section 50 of the Act are applicable in case the seized contraband was being carried by the accused in a plastic bag in his hand, learned counsel for the State submitted that when the police party suspected that the appellant was carrying a bag in his hand in which seized contraband was recovered, the provisions of Section 50 are not fully applicable. In support of his argument, learned counsel relied upon Megh Singh v. State of Punjab, 2003(8) SCC 666 wherein it was held that Section 50 of the Act would not apply to a situation where the search undertaken is not of the accused but of something carried in his hand. It does not extend to search of a vehicle or a container or a bag or premises. Therefore, the contention regarding non-compliance with Section 50 of the Act is without any substance. It does not extend to search of a vehicle or a container or a bag or premises. Therefore, the contention regarding non-compliance with Section 50 of the Act is without any substance. The contention of the learned counsel for the appellant is that when the police party suspected that the appellant was carrying contraband in the bag in his hand, then provisions of Section 50 of the Act are fully applicable. His contention is that the words "search any person" used in Section 50 of the Act mean the search of article(s) of the person or body of the person and thus, would also include the search of article(s) in his possession such as, bag or other things being carried by him or in physical possession of the person to be searched. He further submitted that if the officer carrying out search happened to be an empowered officer for such search and had the reasons to believe that the accused person was in possession of narcotic drug, then he was under obligation to proceed further in the matter in accordance with the provisions of the Act. Thus, according to the learned counsel for the appellant, the provisions of Section 50 of the Act are applicable in the facts and circumstances of the case. 18. In my opinion, the said contention raised on behalf of the appellant is not tenable in view of the latest decision rendered by the Honble Apex Court in the case of Makhan Chand (supra) wherein it has been specifically held that Section 50 of the Act would not apply to a situation where search undertaken is not of the person of the accused but of something carried in his hand. In that case, the accused was carrying the contraband in a plastic bag when the search of the bag was conducted by the police. 19. The second submission made by the learned counsel for the appellant, is also without any substance. Merely because PW-3 Mohinder Singh, who was an independent witness, was known to the Investigating Officer, does not mean that he was a partial or stock witness. In my opinion, it is not necessary for the police to join all the persons in the investigation who were present on the spot. Merely because PW-3 Mohinder Singh, who was an independent witness, was known to the Investigating Officer, does not mean that he was a partial or stock witness. In my opinion, it is not necessary for the police to join all the persons in the investigation who were present on the spot. Therefore, I find no force in the contention raised by the learned counsel for the appellant that in spite of many other independent witnesses available on the spot, the police did not join them in the investigation while making recovery from the appellant. 20. As far as the third submission of the learned counsel for the appellant is concerned, I do not find any merit in the same as well. PW-5 Inspector Kidar Singh Rathi was categorically stated in his statement that the case property was deposited with the MHC concerned with its seals intact. Moreover, no cross-examination to this effect was made by the accused-appellant. Merely because in Exhibit PA it has been mentioned that the sample of 200 grams of opium was deposited in the Malkhana, it cannot be inferred that 5 kgs. of opium was not recovered from the possession or the appellant, particularly when the other documents and material available on record clearly establish that 5 kgs. of opium was recovered from the bag which was being carried by the appellant. In view of the above, I do not find any merit in this appeal and the same is hereby dismissed. Appeal dismissed.