Hoshiar Singh vs State of Haryana

A.S. Nehra, J.

This appeal is directed against the judgment and order dated 16.9.1986 passed by the Additional Sessions Judge, Rohtak, by which the appellant was convicted under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to undergo R.I. for ten years and to pay a fine of Rs. one lakh or in default thereof to further undergo R.I. for two years. 2. The prosecution case, in brief, is that on 16.12.1985, S.I./S.H.O., Onkar Singh (PW2) alongwith two constables was present near the bridge of Jhajjar Sampla road. In the meantime, a person was seen coming from Jhajjar side on foot, who on seeing the policeparty became perplexed. He was apprehended on suspicion and his person was searched. On search, Charas wrapped in a piece of newspaper was covered from the right side pocket of the shirt of the accused which on weighing was found to be 40 grams. The accused could not show any permit or licence authorising him to keep the contraband in his possession. Then S.I. Onkar Singh (PW2) separated 5 grams of Charas out of recovered quantity as sample and both sample and remaining quantity of Charas after being made into separate sealed parcels with Seals ''QS'' were taken into possession by him vide recovery memo Ex.PA attested by PW Ashok Kumar. Thereafter, he sent ruqa, Ex.PB, for registration of the case; on the basis of which formal F.I.R. Ex.PB/1 was recorded. He also prepared rough site plan, Ex.PC, of the place of occurrence, recorded the statements of the of the witnesses, arrested the accused and on return to the Police Station, deposited the case property with seals intact, with MHC Dharam Pal. On receipt of the report of Chemical Examiner, Ex.PF, opining the contents of the sample as Charas, a report under Section 173 of Code of Criminal Procedure was prepared and after perusal of the said report and other documents, the trial Court found a prima facie case against the accused under Section 20 of the Act and, therefore, he was charged accordingly to which he pleaded not guilty and claimed trial. 3. To prove its case, the prosecution examined Constable Ashok Kumar (PW1), S.I. Onkar Singh (PW2) and Head Constable Chhotu Ram (PW3). Besides, affidavit of Head Constable Dharam Pal, Ex.PD, affidavit of Constable Kitab Singh, Ex.PE, and report of the Chemical Examiner, Ex.PF, were also tendered in evidence. 4. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the allegations levelled against him by the prosecution and pleaded his innocence and false implication. In his defence, he examined Hoshiar Singh as DW1. Learned counsel for the appellant urged that in the present case, there was a violation of the provisions of subsection (1) of Section 50 of the Act as before effecting the search, no notice had been given to the appellant enquiring his willingness to be searched either before a Gazetted Officer or a Magistrate. He further submitted that the provisions of Section 50(1) of the Act were mandatory as the controversy had been settled by the Supreme Court in

State of Punjab v. Balbir Singh, 1994(1) R.C.R. 736, and noncompliance of said provisions vitiated the trial. On the contrary, the learned Assistant Advocate General argued that it was a case of chance recovery of Charas and consequently, the ratio of the decision in State of Punjab v. Balbir Singh (supra) will not be attracted. 5. In the facts of the case, the said contention of the State counsel cannot be appreciated. It is in evidence that the police officer, on suspicion, had stopped the appellant to effect his search. Once the suspicion had arisen, which obviously was that the appellant was in possession of some contraband material, it was mandatory that the appellant should have been given notice seeking his willingness to be searched either before a Gazetted Officer or a Magistrate failing which it was open to the concerned person to raise a plea that prejudice had been caused to him. Consequently, it must be held that the provisions of subsection (1) of Section 50 of the Act were violated by the prosecution and, therefore, the trial of the appellant had vitiated. 6. For these reasons, the appeal is allowed, the order of conviction and sentence passed by the learned trial Court is setaside and the appellant is acquitted by giving him the benefit of doubt.