Ajaib Singh vs State of Haryana

T.H.B. Chalapathi, J.

This appeal is directed against the conviction and sentence imposed by the learned Additional Sessions Judge, Sirsa in Sessions Case No. 22 of 1987 dated 27.5.1988.

The accusedappellant was convicted for the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the N.D.P.S. Act) and sentenced to undergo rigorous imprisonment for a period of ten years and pay a fine of Rs. one lac.

According to the case of the prosecution on 30th September, 1996 Head Constable Ram Singh apprehended the accusedappellant near Khuyian Malkana and recovered 21/4 Kgs. of poppy straw from the possession of the accused. Thereafter, he sent a ruqa to the Police Station and a formal F.I.R. was registered and after completion of the investigation, a chargesheet was filed.

On the basis of the material placed before him, the learned Additional Sessions Judge committed the case to the Sessions and on committal, the learned Additional Sessions Judge framed a charge against the accusedappellant for the offence under Section 15 of the N.D.P.S. Act and the accused pleaded not guilty to the said offence.

In order to prove the guilt of the accused, the prosecution examined three witnesses and marked certain documents. After the closure of the evidence for the prosecution, the accusedappellant was examined under Section 313 Cr.P.C. in which he admitted the recovery of 21/4 Kgs. of chura post from his possession and he further stated that he was addicted to chura post and due to quarrel in the family, somebody informed the police about his possession of chura post. Basing on the admission made by the accused under Section 313 Cr.P.C. the learned Additional Sessions Judge convicted the accused and sentenced him as stated above.

It is clear from the evidence of record that the Head Constable alone made the search and recovered the chura post i.e. poppy straw from the possession of the accusedappellant. There is nothing on record to show that the accused was informed about his right to be searched in the presence of Gazetted Officer or a Magistrate. Even the Head Constable who made the search and who has been examined as PW2 did not even say in his evidence that he made the offer to the accused to be searched in the presence of a Gazetted Officer or a Magistrate. In State of Punjab v. Baldev Singh, 1999(3) RCR(Crl.) 533 : JT 1999(4) SC 595 , it has been held by the Supreme Court that illegal recovery of the contraband without following the procedure under Section 50 of the N.D.P.S. Act cannot be the basis of the conviction under the Act. Simply because the accusedappellant admitted in his statement under Section 313 Cr.P.C. the recovery of chura post i.e. poppy straw, that statement cannot be used to convict him because the alleged recovery is itself illegal and the Apex Court held that the conviction cannot be based on the basis of illegal recovery. The prosecution cannot take advantage of the admission of the accused in his statement under Section 313 Cr.P.C. I am, therefore, of the opinion that conviction based on illegal recovery is liable to be set aside in view of the judgment in the State of Punjab v. Baldev Singh (supra).

The appeal is, accordingly, allowed and the conviction and sentence imposed by the learned Additional Sessions Judge on the accusedappellant are hereby set aside. The bail bonds of the accused shall stand cancelled.