Gurmail Singh vs Union Territory

R.L. Anand, J.—By this judgment, I shall dispose of two criminal appeals bearing Nos. 527-SB of 1996 and 538-SB of 1996 filed by Gurmail Singh and Ranjit Singh respectively and have been directed against the judgment and order dated 23.7.1996 passed by Additional Sessions Judge, Chandigarh, who convicted the present Appellants Gurmail Singh and Ranjit Singh u/s 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act�) and sentenced them to undergo R.1. for a period of ten years each and to pay a fine of Rs. 1 lac each and in default of payment of fine each one of them was directed to undergo R.1. for two years.

The prosecution case briefly can be stated in the following manner :

On 28.7.1997, a police party headed by S.I. Phool Singh in which A.S.I. Ram Lubhaya, Constable Manga Ram and Constable Jasbir Singh were also present as near Counter No. 19, inter-State Bus Terminal, Sector 17, Chandigarh when one person by the name of Gopal Soni, son of Triveni Parsad met them. The Sub-Inspector was having casual talks with Gopal Soni when he received a secret information from someone to the effect that two boys Ranjit Singh and Gurmail Singh were standing near the Patiala counter gate at the bus stand carrying the bags containing poppy husk. Finding the information reliable, the Thanedar in the presence of Gopal Soni raided that place. The Appellants were found present there while holding one bag each in their hands. The Thanedar ascertained their names and addresses from them and told them that he had the information that they were carrying poppy husk in the gunny bags and he wanted to search them. The Thanedar also told that if they wanted, their search could be conducted in the presence of some Magistrate or a Gazetted Police Officer. Both the Appellants stated that their search should be conducted in the presence of a Gazetted Police Officer, as a result of which the Thanedar sent an information on telephone to D.S.P.S.C. Sagar, who reached the bus stand after some time. He disclosed his identity to the Appellants and also told them he wanted to conduct their search and in case they so desired, their search could be arranged to be conducted in the presence of some Magistrate. The Appellants became ready to give their search in the presence of the D.S.P. and the D.S.P. then directed the Thanedar to conduct the search of the Appellants. Poppy husk was found contained in the gunny bag carried by Appellant Gurmail Singh. He could not produce any permit or licence and the bag was found containing 22 kgs. of poppy husk. 500 gms. of poppy husk was separated as sample and a sealed parcel was made thereof. The remaining poppy husk was sealed in the same gunny bag. Both the sealed parcels were taken into possession vide recovery memo Ex. PA attested by Gopal Soni, D.S.P.S.C. Sagar and ASI Ram Lubhaya. Then the search of the bag carried by Ranjit Singh Appellant was taken. The same was also found containing poppy husk weighing 23 kgs. 500 grams was separated as sample and a sealed parcel was prepared. The remaining poppy husk was also sealed in the same gunny bag and both the parcels were taken into possession vide recovery memo Ex. PB. Appellant Ranjit Singh also could not produce any licence or permit for the possession of the poppy husk. Resultantly, ruqa Ex. PC was sent to the police station by the Investigating Officer, on the basis of which formal F.I.R. Ex. PC/1 was recorded by A.S.I. Gurmail Singh. The Investigating Officer then prepared the rough site plan of the place of recovery and arrested the Appellants. On return to police station he produced the case property with the seals intact along with the specimen impression of the seal and the Appellants before the S.H.O. Arjun Singh in Police Station Central Chandigarh on the same day. The said S.H.O. verified the facts to the Appellants and re-sealed the case property with his own seal bearing inscription AS. The samples of the poppy husk were sent to the office of Director, F.S.L., who vide his report declared the contents as poppy husk. On the completion of the investigation, challan was filed in the Court of Area Magistrate, who supplied the copies of the documents to the Appellants and committed both the Appellants to the Court of Sessions vide commitment order dated 18.11.1995.

The trial Court framed the charge u/s 15 of the Act against Gurmail Singh and Ranjit Singh Appellants on 2.12.1995. The charge was read over and explained to the Appellants to which they pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined S.C. Sagar, D.S.P.P.W. 1. Gopal Soni P.W. 2, Inspector Arjun Singh P.W. 3, H.C. Nafe Singh P.W. 4, Constable Dharam Singh P.W. 5, Sub-Inspector Phool Singh P.W. 6 and finally tendered into evidence the report of Director, F.S.L. Ex. PF and closed the case.

The statements of the Appellants were recorded u/s 313, Code of Criminal Procedure and all the incriminating circumstances appearing in the prosecution evidence were put to them. Appellants denied those circumstances and the plea of Ranjit Singh Appellant was as under :

My brother Hakam Singh had left the village when he was angry with us and I had come to Chandigarh to search him. I was sleeping at bus stand Chandigarh when I was apprehended by the police and involved in the present case. No poppy husk was recovered from me and Gurmail Singh was not arrested along with myself. He is not related to me and even not known to me.

The stand of Gurmail Singh Appellant before the trial Court was as follows :

I was arrested by the police near the Thekka at bus stand when 1 had taken some liquor. I was falsely involved in this case and nothing incriminating was recovered from me. I do not at all know Ranjit Singh and he was not arrested along with myself.

When called upon to enter into their defence, the Appellants did not lead any evidence.

The trial Court convicted and sentenced the Appellants in a joint trial in the manner as stated above and aggrieved by their conviction and sentences, the present appeal which 1 am disposing of with the assistance rendered by Shri R.O. Dhir, Advocate, who appeared on behalf of the Appellants. Shri Ajay Lamba. who appeared on behalf of the Respondent and with their assistance I have gone through the record of this case.

The Learned Counsel for the Appellants has assailed the findings of the trial Court by stating that the mandatory provisions of Section 50 of the Act have not been complied with by the prosecution and in these circumstances, the Appellants are entitled to acquittal. On the contrary, it has been submitted by Shri Lamba that Section 50 in this case is not applicable as the poppy husk was allegedly recovered from the bags which were in the hands of the Appellants and not from their persons. Also it has been submitted on behalf of the Respondent that notice was given to the Appellants as to whether they wanted to give the search in the presence of a Magistrate or in the presence of a Gazetted Police Officer and that the Appellants reposed confidence by stating before the Investigating Officer S.I. Phool Singh that they could be searched by a Gazetted Police Officer and as a result of that Shri S.C. Sagar, D.S.P., who was a Gazetted Officer, was called before taking the search of the bags and in these circumstances there is a compliance of Section 50 of the Act.

After considering the rival contentions of the parties, I am of the opinion that this appeal is liable to succeed for the following reasons :

Section 50 of the Act lays down that when any officer duly authorised u/s 42 is about to search any person...if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). This is so laid down in sub-section (2) of Section 50 of the Act. The reading of Section 50 would show that a valuable right has been conferred upon a person who is going to be searched by the investigating Officer. It is correct that in the Act, there is no specific provision or rule which calls upon the Investigating Officer to serve a notice to the person in writing. Even the oral notice is sufficient if given by the Investigating Officer. But once the person to be searched sheds a valuable right in favour of the Investigating Officer by stating that he wants to give the search in the presence of the Investigating Officer alone or in the presence of a Gazetted Police Officer, in such circumstances, the law Court would always expect that the Investigating Officer should record the statement of the person to be searched in writing and such statement should be made in the presence of an independent witness so as to inspire confidence in the mind of the Court about the genuineness of the statement, if any, made by the person. In the present case, the recovery has been effected from a busiest place of Chandigarh like the Inter-State Bus Terminal where hundreds of persons must be present at the time of the alleged recovery. The Investigating Officer also recorded a lengthy ruqa Ex.P.C. and it was sent to the Police Station. In these circumstances, there was hardly any difficulty on the part of the Investigating Officer and he could easily record the statements of the Appellants to the effect that they had abdicated their rights in favour of the police or in favour of a Gazetted Police Officer of the department. Admittedly, Shri Gopal Soni was present when the Investigating Officer received the secret information. In these circumstances, it was very easy on the part of the Investigating Officer at least to record the statements of the Appellants to the effect that they wanted to give the search in the presence of a Gazetted Police Officer and not in the presence of a Magistrate. The non-recording of the statements in writing of the Appellants by the Investigating Officer is fatal in this case and the testimony of Investigating Officer Phool Singh, Gopal Soni and D.S.P.S.C. Sagar cannot be accepted. The things do not rest here. It is the story of the prosecution that before taking the search of the bags, even the D.S.P. enquired from the Appellants as to whether they wanted to give their search in the presence of a Magistrate or in his presence. Against this query Appellants allegedly stated before Shri S.C. Sagar that they are ready to give the search in his presence. But strange enough, Shri Sagar has not recorded any statement in writing of the Appellants. It will be highly unsafe in these circumstances to rely upon the testimony of S.I. Phool Singh, Gopal Soni and D.S.P.S.C. Sagar.

With regard to the argument of the Learned Counsel for the Respondent that Section 50 of the Act only talks of when a search is to be conducted of a person of an individual and not with regard to when a search is to be taken of a bag which is in possession of an individual. Section 50 would apply in both the cases because the object of this section is with regard to the possession of the incriminating article whether found on the person of the individual or found in a bag carried by an individual. The limited interpretation as sought by the Learned Counsel for the Respondent cannot be given, otherwise the very object of Section 50 will stand frustrated. In this regard, assistance can be taken from Ravinder v. State of Punjab, 1997 (1) RCR 720. In para No. 18 of the judgment, the Hon�ble Division Bench was pleased to hold as follows :

We also do not find any merit raised by the Learned Counsel for the State that the provisions of Section 50 of the Act are not applicable to the facts of the present case as the recovery was made from the house and not from the Appellant. In this connection, reference may be made to the judgment of the Supreme Court in the case of Mohinder Kumar (supra), wherein it was held by the Hon�ble Supreme Court that the provisions of Section 50 of the Act are mandatory and are applicable to a case of search from the house as well.

Section 50, in fact, has been introduced in relation to the possession of drug and not in relation to the incriminating article from where it might have been recovered. The narrow interpretation cannot be given as suggested by the Learned Counsel for the Respondent. Thus, I am inclined to hold that Section 50 in this case has not been complied with in its spirit. There is unsatisfactory evidence on the record when S.I. Phool Singh and D.S.P.S.C. Sagar stated that they enquired from the Appellants as to whether they wanted to be searched in the presence of a Gazetted Police Officer or a Magistrate. In the absence of any statement of the Appellants, this Court is not inclined to place implicit reliance on the testimony of Shri Sagar, S.I. Phool Singh and Shri Gopal Soni. The offences under the Act are punishable with heavy punishment of ten years minimum and in these circumstances, the law courts would always expect more satisfactory evidence from the prosecution in order to bring home culprit on account of the well-settled maxim �graver the offence stricter the proof.

I also do not subscribe to the argument raised by the Learned Counsel for the Respondent that since Shri Sagar has corroborated the statements of S.l. Phool Singh and Shri Gopal Soni to the effect that the Appellants did not want the assistance of a Magistrate, therefore, it cannot be treated as fatal for the prosecution if the statements of the Appellants have not been recorded. It was incumbent on the part of S.I. Phool Singh as well as Shri Sagar to record the statements of the Appellants when they had opted that they could be searched by a Police Officer.

As I have stated above that Section 50 has not been complied with in its earnest, therefore, ! accept this appeal, set aside the judgment and order of fhe learned trial Court and acquit the Appellants of the charge framed against them.

The case property stands confiscated to the State and the same shall be destroyed according to rules.

Let the intimation regarding the acceptance of this appeal be sent to the Superintendent, Model Jail, Chandigarh so that the Appellants may be set at liberty forthwith, if not convicted or wanted in any other case.