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2005 DIGILAW 417 (PNJ)

Anand Thakur Alias Gudda v. U. T. Chandigarh

2005-03-22

VIRENDER SINGH

body2005
Judgment Virender Singh, J. 1. Anand Thakur alias Gudda stands convicted by learned Additional Sessions Judge, Chandigarh vide judgment dated 16.3.1993 under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act) and has been sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. one lac, in default of payment of fine to further undergo RI for two and a half years. Aggrieved by the judgment of conviction and sentence, he has preferred the present appeal. 2. In short the case of the prosecution is that on 28.2.1992 at about 5.30 p.m., Sub-Inspector Naresh Pal (PW-6) accompanied by other police officials were present at the cross-section of Sectors 37-38, Chandigarh when he received a secret information that the appellant was likely to come to that side from the direction of Sector 24 and he was keeping some contraband in his possession. Prem Lal (PW-5) an independent witness was also joined by the police party. After about half an hour, the appellant was seen coming and on seeing the police party, he tried to make good his escape but was captured by the police. Since he was suspected to be in possession of some contraband, he was asked by the said Sub-Inspector if he was prepared to get his search conducted from him or would prefer to be searched by some senior officer. After he chose to be searched by some senior officer, a message was flashed to DSP (Sh. S.C. Sagar) to reach the spot and in his presence, the search was conducted. From a polythene bag which the appellant was having in his hand, 500 grams of Charas was recovered. Out of it, two samples of 20 grams each were taken and the remainder was kept in the same bag. The samples and the packet of the remaining charas were made into separate parcels and were taken into possession vide two recovery memos. A ruqa was also sent to the concerned Police Station on the basis of which a formal FIR was recorded. Other formalities were also completed at the spot itself. After the receipt of the report of the Chemical Examiner, the appellant was challaned. He was consequently charged under Section 15 of the Act. As stated above, he now stands convicted. 3. Other formalities were also completed at the spot itself. After the receipt of the report of the Chemical Examiner, the appellant was challaned. He was consequently charged under Section 15 of the Act. As stated above, he now stands convicted. 3. The prosecution in support of his case has examined as many as 7 witnesses. The material witnesses of the prosecution are Prem Lal PW-5, Sub-Inspector Naresh Pal PW-6 and DSP S.C. Sagar PW-7. To prove the link evidence, the affidavits of the police officials have also been tendered. The Chemical Examiner report is Ex. PF. 4. The stand taken by the appellant is that he has been falsely implicated in this case. However, he led no evidence in defence. 5. I have heard Mr. H.S. Gill, learned Senior Advocate assisted by Mr. Vivek Goel, Advocate for the appellant and Mr. R.S. Rai, learned Standing counsel, U.T. Chandigarh. 6. Mr. Gill sets store mainly on the non-compliance of Section 50 of the Act and submits that this basic infirmity in the case of the prosecution entitles the appellant to earn acquittal. Drawing my attention to the statement of the aforesaid three witnesses of recovery, Mr. Gill contends that there is non- compliance of mandatory provisions of Section 50 of the Act. He states that after the appellant was suspected to be in possession of Charas, the only offer which is given to him is as to whether he wanted to get searched by him (SI Naresh Pal) or in the presence of a gazetted officer. There is no offer with regard to the search before a Magistrate. After the appellant opted for the search to be conducted by a gazetted officer, a message was sent to DSP Sh. S.C. Sagar on wireless. Mr. Gill states that no doubt compliance of Section 50 of the Act can be made orally also but it has to be complete in all respects which is not the position in the case in hand. 7. Mr. S.C. Sagar on wireless. Mr. Gill states that no doubt compliance of Section 50 of the Act can be made orally also but it has to be complete in all respects which is not the position in the case in hand. 7. Mr. Gill while relying upon a latest judgment of the Full Bench of this Court, rendered in Mohan Singh v. State of Punjab, 2004(4) RCR(Crl.) 260 (FB), submits 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 his option, the Investigating Officer is required to conduct the search in the presence of the gazetted officer or the Magistrate, as the case may be. Mr. Gill further contends that it has been observed by Honble the Full Bench that the offer has to be complete but essentially need not to be in writing. According to the learned counsel the prosecution case is stumbling on this aspect and this lacuna alone knocks at the bottom of the case. 8. Mr. Gill has also pointed out certain contradictions in the statements of Prem Lal, the so-called independent witness and other two official witnesses and submits that the said contradictions are very material and belies the case of the prosecution. 9. On the basis of the aforesaid submissions, he prays for acquittal. 10. The submissions made on behalf of the appellant have been opposed vehemently by Mr. Rai, contending that the recovery in this case is of 500 grams of Charas; the appellant is from other State and there cannot be any chance of false implication in this case and the conviction as recorded by the learned trial Court, thus, deserves to be upheld. 11. After giving my thoughtful consideration to the main submissions made by Mr. Gill, I am of the considered view that the prosecution case fails. 12. Admittedly, the offer given by SI Naresh Pal in this case is not complete. The offer contemplated under Section 50 of the Act has to be in complete. In case there is violation of statutory provisions of Section 50 of the Act, the search renders illegal and the conviction and sentence thereupon becomes bad. 12. Admittedly, the offer given by SI Naresh Pal in this case is not complete. The offer contemplated under Section 50 of the Act has to be in complete. In case there is violation of statutory provisions of Section 50 of the Act, the search renders illegal and the conviction and sentence thereupon becomes bad. In Mohan Singhs case (supra), while dealing with the preposition of Section 50 of the Act, this Court observed :- "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 his option, the Investigating Officer is required to 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 to be in writing." 13. In my considered view, the case of the appellant is squarely covered by the aforesaid judgment rendered in Mohan Singhs and he deserves acquittal. 14. Since I am acquitting the appellant on the point of aforesaid basic infirmity in the case of the prosecution, I do not feel the necessity of entering into discussion with regard to the other discrepancies in the statements of the prosecution witnesses. 15. To sum up, the net result, now surfaces is that the prosecution has not been able to prove its case against the appellant to the hilt to prove the charge under Section 15 of the Act. The conviction as recorded by the learned trial Court is hereby set aside. 16. The appeal is allowed. The appellant is discharged of surety bonds submitted by him during the pendency of appeal.