Amandeep Singh vs State of Punjab

Anita Chaudhary, J.—The appellant was tried by the Special Judge (N.D.P.S. Cases) Amritsar for the offence u/s 22 of the Narcotic Drugs and Psychotropic Act, 1985 (hereinafter referred to as the Act) and Section 25 of the Arms Act. The appellant was sentenced to undergo rigorous imprisonment for a period of 2 years along with a fine of Rs. 15,000/- u/s 21 of the N.D.P.S. Act. In default of payment of fine, he was to further undergo imprisonment for 6 months. He was also sentenced to undergo rigorous imprisonment for a period of 1 year along with a fine of Rs. 1,000/- for the offence punishable u/s 25 of the Arms Act. In default of payment of fine, he was to further undergo imprisonment for 1 month.

The case of the prosecution was that on 24.10.2008, S.I. Gurpreet Singh alongwith his team was on patrol duty and holding a picket at Sultanwind Bridge Area, when secret information was received by him that Amandeep Singh who was notorious in the area, who was involved in number of robbery cases, had now started dealing in drugs. There was specific information that he was standing near T point on 100 feet wide road with his silver coloured Hero Honda motorcycle bearing registration no. PB-02-Y-8212, waiting to supply smack to the customers and if a raid is conducted, he could be apprehended with the contraband. The informer gave specific information about the clothes worn by Amandeep Singh. S.I. Gurpreet Singh sent a notice to his superior officers and sent a written Ruqa for registration of the case and left for the place and saw the accused-appellant sitting on his motorcycle. The accused on seeing the police party tried to slip away and in the process, two small packets held by him fell on the ground. The accused tried to start his motorcycle but he was intercepted and searched. The police team searched the packet and found that it contained 8 small packets and all those packets contained smack. The entire quantity contained in the 8 small packets was put together and a sample weighing 5 grams was separated. The remaining portion was weighed which was found to be 95 grams. The residue was sealed and was converted into separate parcel which was sealed with the stamp marked with the seal impression of G.S. Accused was unable to show any license or permit. Personal search of the accused was carried out and from the right pocket of his trouser, a spring actuated knife was recovered. It was also taken into possession vide separate recovery memo. The accused was then produced before the S.H.O. who checked the seals and then affixed his own seal. The appellant was arrested and after completion of investigation, challan was presented against him and he was charged u/s 21 of the N.D.P.S. Act and Section 25 of the Arms Act.

The prosecution examined 4 witnesses. The important witnesses being Inspector Manjit Singh - PW2, ASI Nirmal Singh - PW3 and S.I. Gurpreet Singh - PW4 who are the witnesses to the recovery. Inspector Manjit Singh - PW2 at the relevant time was posted as SHO. H.C. Jatinder Pal - PW1 proved his affidavit Ex. PA with respect to the deposit of the sample by him in the office of the Chemical Examiner.

The accused pleaded false implication. He contended that the police had conspired and had framed him and he was picked up from his house and a false case had been planted.

The learned Sessions Judge convicted the appellant for both the charges and he was sentenced to the imprisonment mentioned here-in-before.

Aggrieved by the judgment, the appellant has preferred this appeal.

The submissions raised on behalf of the appellant are that the police had failed to comply with the mandatory provisions of Section 50 of the N.D.P.S. Act and the conviction ought to be set aside on this ground alone. It was urged that there were several packets but only one sample was taken out. It was urged that the report of the Chemical Examiner would reveal that there was 31.3% of morphine and even if, his submissions are not accepted then the sentence should have been proportionate to the recovery. It was urged that the Special Court was wrong in concluding that compliance of Section 50 of the Act was not necessary. It was urged that the police had specific information about the appellant and it was not a chance recovery, therefore, compliance of Section 50 of the Act was necessary. Reliance was placed upon State of Haryana and Another Vs. Sandeep Kumar, U.O.I. Vs. Bal Mukunt & Ors. 2009 (2) RCR (Crl.) 574, Vijaysinh Chandubha Jadeja Vs. State of Gujarat, and Gurjant Singh @ Janta Vs. State of Punjab,

On the other hand, the submission made on behalf of counsel appearing for the State was that requirement of Section 50 of the Act was not necessary in this case as the contraband was found not from the personal search but it had fallen on the ground when the accused tried to flee and on personal search, no recovery of any drug was affected and the trial Court had considered all the submissions and had rightly convicted the appellant.

The question is whether the recovery in this case would attract the provisions of Section 50 of the Act. Before going into the legal submissions, the statement made by S.I. Gurpreet Singh - PW4 needs to be referred to. He had deposed that he alongwith his team was present at the chowk in search of bad elements when secret information, specific to Amandeep Singh son of Gurmeet Singh was received that he was selling smack and was waiting for the customers on a motorcycle bearing registration no. PB-02-Y-8212 at T point on the 100 feet wide road. He stated that relying upon this information, he informed his senior officials and sent Ruqa Ex. P7 and joined one Kashmir Singh as an independent witness and they with rest of the team went to the disclosed place and found a person sitting on the motorcycle. He stated that the said person on seeing the police party tried to run away but was apprehended. He stated that when the accused tried to run, two packets fell on the ground from the polythene carried by the accused in his right hand and he checked the polythene carried by the accused and 8 more packets of smack were recovered from polythene. He stated that he picked up 2 packets of smack from the ground and mixed all the smack in one polythene and separated 5 grams of smack and put the same in a plastic container and remaining 95 grams was put in other plastic container and both the parcels were separately sealed. He stated that he then carried out the personal search of the accused and a knife was recovered. The witness admitted in the cross-examination that the secret information that was received, was not reduced in writing, nor written intimation was sent to the superior officials. He admitted that no notice u/s 50 of the Act was given to the accused nor the accused was apprised of his right to get himself searched in the presence of a Gazetted Officer. He stated that form 95 was not prepared and signatures of the accused were not taken on the case property. He deposed that he informed the police officials on telephone regarding the arrest.

The Special Judge, Amritsar gave rather a detailed judgment and concluded that the accused was found to be in conscious possession of a narcotic substance and the recovery was not from the personal search of the accused and rejected the contention of the defence that the mandate of Section 50 of the Act had to be followed.

The question would be whether it was a chance recovery or a random search. The witnesses have admitted that the police officers had positive information that Amandeep Singh was carrying contraband and he had parked himself at a particular place and recovery could be effected as he was waiting for the customers. The Investigating Officer had admitted that he had carried out the search without apprising the accused of his right of being searched in the presence of a Gazetted Officer.

A perusal of the statement of S.I. Gurpreet Singh clearly shows that when Amandeep Singh saw the police, he tried to run and two packets fell on the ground from the polythene carried by him in his right hand. The police then searched the polythene carried in the right hand of the appellant which was found to contain 8 more packets of smack.

In State of Punjab Vs. Balbir Singh, the Hon''ble Apex Court has held that Section 50 of the NDPS Act is mandatory and non-compliance thereof would vitiate trial. In State of Himachal Pradesh Vs. Shri Pirthi Chand and another, it was held that breach of Section 50 does not affect the trial. There were divergent views on this aspect and, therefore, a reference was made to the Constitution Bench. Out of the three questions of law, which the Constitution Bench dealt with in State of Punjab Vs. Baldev Singh, etc. etc., the question which is relevant for the present case is whether it is the mandatory requirement of Section 50 of the NDPS Act that when an officer duly authorized u/s 42 of the NDPS Act is about to search a person, he must inform him of his right under subsection(1) thereof of being taken to the nearest gazetted officer or nearest Magistrate. The conclusions drawn by the Constitution Bench, which are relevant for this case could be quoted.

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.

In the present case, the conviction is solely based on recovery of smack from polythene bag carried by the appellant. No smack was found on his person.

In Kalema Tumba Vs. State of Maharashtra and Another, Hon''ble Apex Court has held that if a person is carrying a bag or some other article with him and narcotic drug is recovered from it, it cannot be said that it was found from his person and, therefore, it is not necessary to make an offer for search in the presence of a gazetted officer or a Magistrate in compliance of Section 50 of the NDPS Act.

In State of Himachal Pradesh Vs. Pawan Kumar, three-Judge Bench of the Apex Court had held that a person would mean a human being with appropriate coverings and clothing and also footwear. A bag, briefcase or any such article or container etc. can under no circumstances be treated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the NDPS Act. The question is, therefore, whether Section 50 would be applicable to this case because smack was recovered only from the bag carried by the appellant.

In Dilip and Another Vs. State of M.P., on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. The Hon''ble Apex Court held that provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. The Hon''ble Apex Court confirmed the acquittal of the accused.

In Union of India (UOI) Vs. Shah Alam and Another, heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken but nothing was recovered from their person. It was urged that since personal search did not lead to any recovery, there was no need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that since the provisions of Section 50 of the NDPS Act were not complied with, the High Court was right in acquitting the respondents on that ground.

In State of Rajasthan Vs. Parmanand and Another, the Hon''ble Apex Court was dealing with a case wherein secret information was received that the accused would hand over a large quantity of opium in the morning at 4:00 A.M. to a smuggler. The raiding party reached the spot and informed the accused that they had to take their search and they had also apprised of their right of search u/s 50 of the NDPS Act and a written notice to that effect was given to them where one of the accused gave his consent while the other did not give anything in writing but reposed confidence to the SI and the search was carried out and opium was covered. The accused there were convicted and sentenced. In appeal, he was acquitted, thereafter, the matter was taken to the Hon''ble Apex Court and observations made in para nos. 12 & 13 are as under:-

Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No. 1 Parmanand''s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.

It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right u/s 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No. 2 - Surajmal is stated to have signed for himself and for respondent No. 1 -Parmanand. Respondent No. 1 Parmanand did not sign.

In State of H.P. Vs. Sunil Kumar, the question was whether, the accidental or chance recovery of narcotic drugs during a personal or body search would attract the provisions of Section 50 of the Act. Reference was there made to the judgment of the Constitution Bench referred in State of Punjab Vs. Baldev Singh 1999 (6) SCC 172. The relevant extract of paragraph no. 25 of Balbir Singh''s judgment is read as under:-

If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Code of Criminal Procedure and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search of arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

In view of the above, it is to be first understood as to what is chance recovery and then the next question arises whether the provisions of Section 50 of the Act would apply and when there is a chance recovery. The expression chance recovery has not been defined anywhere and it simply seems recovery by chance or by accident or unexpectedly or where a police officer stumbles on a narcotic drug when he makes a search accidentally.

Applying this to the facts of the present appeal, it is clear that the police officer was on look out of the appellant and there was specific information that he was dealing in drugs and was waiting to sell the same. It cannot be described as a recovery by chance as police was looking for drugs and nothing else. It is not possible to accept the view that the police officers were conducting a random search. They had a positive suspicion that Amandeep Singh was carrying contraband and compliance of Section 50 of the Act was necessary. On the failure of the police officers to comply with the provisions of Section 50 of the NDPS Act, the search conducted in this case is vitiated and I have no hesitation in concluding that the breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the appellant is, therefore, set aside and the accused-appellant is acquitted of the charges. The appeal is accepted. The appellant be released if not required in other case. Lower Court record be sent back.