Harbans Singh vs State of Haryana

H.S. Bedi, J. (Oral)

This appeal arises from the following facts :

On 4.12.1985 at about 3.00 A.M. ASI Randhir Singh (PW3) was posted at Kalanaur barrier when he noticed a truck No. PBO1848 coming from the side of Saharanpur towards Yamuna Nagar. The truck was stopped and it was found that it was being driven by Harbans Singh accused/appellant and there was none else present in the truck. On search of the took box of the truck, 60 kilograms of poppyhusk were recovered. The accused was accordingly arrested and First Information Report (Exhibit PF/1) was recorded at Police Station, Saddar Yamuna Nagar. On completion of investigation and on receipt of the report of the laboratory that the recovered goods was poppy husk, the accused was sent up to face trial for an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "the Act").

The prosecution, in order to prove its case, examined amongst others SI Izzat Singh as PW 1, Constable Pritam Singh as PW2 and ASI Randhir Singh as PW 3.

In his statement recorded in terms of Section 313 of the Code of Criminal Procedure, the accused denied the allegations levelled against him and gave a counter version that he had been roped in on account of the fact that he had sided with the truck drivers in a dispute between them and the police and that in fact even the truck from which the recovery of poppyhusk was allegedly made, did not belong to him.

The trial Court came to the conclusion that the evidence of ASI Randhir Singh and Constable Pritam Singh proved the prosecution case beyond all reasonable doubt and the fact that no independent witness was joined at the time of recovery was no ground to disbelieve the testimony of the police officials; that the noncompliance with the provisions of Section 50 of the Act did not vitiate the conviction as it had not been ascertained from the prosecution witnesses in the course of their examination in the court as to whether the accused had opted to be searched in the presence of a gazetted officer or a magistrate; that the defence story was not believable and having held above, convicted the accused and sentenced him to undergo rigorous imprisonment for 10 years and to the payment of a fine of Rs. one lac, in default of payment of fine to further undergo rigorous imprisonment for two years. Hence this appeal.

Mr. K.S. Sidhu, the learned counsel appearing for the accused/appellant has urged that in the light of the judgment of the Supreme Court in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 : JT 1994(1) S.C. 108 , the noncompliance with the provisions of Section 50 of the Act vitiated the conviction. He has further urged that the observations of the trial Court that it was for the accused to prove that he had requested that he be searched in the presence of a gazetted officer or a magistrate was also erroneous in the light of the aforesaid judgment, as it was for the police to inform the accused of his rights under Section 50 of the Act.

As against this, the learned State counsel has urged that the provisions of Section 50 of the Act could not be made mandatory as the recovery was not effected from the accused, but from the vehicle which he was holding at that time.

After hearing the learned counsel for the parties, I am of the opinion that this appeal deserves to succeed. In Criminal Appeal No. 180DB of 1993 (Kulwant Singh and another v. Assistant Collector Customs), decided on December 7, 1995, a Division Bench of this Court has held that the provisions of Section 50 of the Act have to be complied with even when search/seizure is to be made from a vehicle. In the light of these observations, the argument of the learned State counsel does not hold good. Once it is held that the provisions of Section 50 of the Act apply to such a seizure, the non compliance thereof completely vitiates the conviction of the accused as admittedly, in this case the aforesaid provisions have not been complied with.

For the reasons recorded above, the present appeal succeeds and the accused/appellant is acquitted of the charge framed against him. The seized truck be returned to its owner.