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2005 DIGILAW 348 (PNJ)

Ram Prasad v. State Of Haryana

2005-03-04

MEHTAB S.GILL

body2005
Judgment Mehtab S.Gill, J. 1. This is an appeal against the judgment dated 18.4.1991 of the Additional Sessions Judge, Rohtak, whereby he convicted appellant Ram Parsad under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") and sentenced him to undergo R.I. for ten years and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo R.I. for two years. 2. Brief facts of the case are that on 11.2.1989, S.I. Gian Singh (PW-3) was present at the Medical College turning in the area of Rohtak along with Head Constable Pirthi Singh (PW-2) and some other police officials in connection with patrol duty. At about 3.30 p.m., S.I. Gian Singh received secret information that Ram Parsad appellant has Charas in his possession. Ruqa Ex. PD was sent to the Police Station Civil Lines, Rohtak. F.I.R. was registered. S.I. Gian Singh (PW-3) along with the police party and Bani Singh, an independnet witness, went to the shop of the appellant. Offer was made to the appellant as to whether he wanted to be searched by a Gazetted Officer, or by S.I. Gian Singh himself. Appellant stated that his search be conducted by S.I. Gian Singh. Disclosure Statement Ex. PF/1 was made by the appellant. Charas which was kept in a bag in an almirah in the room of his shop, was recovered on the appellant leading the police party to the almirah. 2 kilograms and 50 grams of Charas was found in the bag. 50 grams of Charas were taken as sample and put in a small tin. The remaining Charas was put in another tin. Both the containers were made into parcels and sealed with the seal "GSV". The seal was given to Bani Singh. S.I. Gian Singh then went to the office of CIA Staff, Rohtak. He produced the appellant along with the case property before Inspector Daya Nand (PW-4). 3. Prosecution to prove its case, brought into the witness-box PW-1 SI Ram Krishan, PW-2 Constable Pirthi Singh, PW-3 SI Gian Singh and PW-4 Inspector Daya Nand. 4. Independent witness Bani Singh did not come into the witness-box, as he was won over by the appellant. 5. 3. Prosecution to prove its case, brought into the witness-box PW-1 SI Ram Krishan, PW-2 Constable Pirthi Singh, PW-3 SI Gian Singh and PW-4 Inspector Daya Nand. 4. Independent witness Bani Singh did not come into the witness-box, as he was won over by the appellant. 5. Learned counsel for the appellant has assailed the case of the prosecution on the ground that the mandatory provisions of the Sections 42 and 50 of the Act were not complied with. 6. Learned counsel for the State has stated that offer of search was made. Appellant reposed confidence in SI Gian Singh, who then conducted the search. 7. I have heard the learned counsel for the parties and perused the record with their assistance. 8. It has come in evidence and in the testimony of SI Gian Singh (PW-3) that after effecting recovery, he went to the office of CIA Staff, Rohtak and produced the case property and the appellant before Inspector Daya Nand (PW- 4). 9. The Honble Supreme Court in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) R.C.R. (Criminal) 611 (SC), has held that in case of recovery of contraband by a police officer on receipt of prior information, and if the prior information is not reduced into writing, nor is a copy sent to superior officer, it amounts to non-compliance of Section 42. Action of the officer effecting recovery on the basis of unrecorded information would become suspect. 10. Ruqa Ex. PD sent to the Police Station, Civil Lines, Rohtak reads as under :- "Ram Parshad son of Gohil Ram Jat of Village Makroli Khurd, who runs provisional store in Model Town, Rohtak, indulges in selling Charas, that he is present at the shop and that if a raid is conducted immediately, he can be apprehended." 11. In his testimony before the Court, S.I. Gian Singh (PW-3) has stated that Ruqa Ex. PD was sent by him and thereafter he organised a raiding party. Nothing is mentioned in the Ruqa Ex. PD about the source of information. 12. Appellant Ram Parsad was present in the shop. PW-3 has further stated that "I told him that he was suspected of having Charas. I asked him whether he wanted to be searched by a Gazetted Officer, or I could search his person." Appellant replied that he did not have any objection, if he was searched by S.I. Gian Singh. 12. Appellant Ram Parsad was present in the shop. PW-3 has further stated that "I told him that he was suspected of having Charas. I asked him whether he wanted to be searched by a Gazetted Officer, or I could search his person." Appellant replied that he did not have any objection, if he was searched by S.I. Gian Singh. Provisions of Section 50 of the Act have not been complied with. At the relevant time, SI Gian Singh (PW-3) did not know whether Charas was on the person of the appellant, or was it lying in the almirah. Offer of the personal search (of accused) by a Gazetted Officer or by himself was made. This offer was a partial offer. 13. The Honble Supreme Court in Madan Lal and another v. State of Himachal Pradesh, 2003(4) RCR(Crl.) 100 (SC) : A.I.R. 2003 S.C. 3642, has held that Section 50 of the Act applies to personal search of a person. It has been held that a bare reading of Section 50 shows that Section 50 applies in case of personal search of person and it does not extend to search of a vehicle or a container, or a bag, or premises. This position has been settled beyond doubt by a Constitution Bench in State of Punjab and another v. Baldev Singh, 1999(3) RCR(Crl.) 533 (SC) : A.I.R. 1999 S.C. 2378. 14. Similarly, in State of Punjab v. Balbir Singh, J.T. 1994(2) S.C. 108 : 1994(1) RCR(Crl.) 736 (SC), the Honble Supreme Court has held that it is obligatory on the authorised officer to inform the accused of his right to be searched under Section 50 which is mandatory. The offer as per Section 50 of the Act is to ask the accused whether he wants to be searched by a Gazetted Officer, or Magistrate. 15. SI Gian Singh was duty bound to make an offer to the appellant as to whether he wanted to be searched by a Gazetted Officer, or a Magistrate. Offer in this case was a partial offer as to whether the appellant wanted to be searched by a Gazetted Officer, or SI Gian Singh himself. 16. Appeal is allowed. Judgment dated 18.4.1991 of Additional Sessions Judge- III, Rohtak is set aside. Appellant is acquitted of the charge framed against him.