Mangal Singh vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment dated 15.12.1997 passed by the Court of Additional Sessions Judge, Bhiwani, who convicted the appellant under Section 20 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as `the Act'') and vide order dated 17.12.1997 sentenced him to undergo RI for a period of 10 years and to pay a fine of Rs. 1 lac; in default of payment of fine the appellant was directed to undergo further RI for one year.

The charge against the appellant was framed on 28.3.1997 to the effect that on 16.1.1997 in the area of Dhani Riwasa he was allegedly in possession of 550 grams of Charas without any licence or permit and thereby he committed an offence punishable under Section 20 of the Act.

The story of the prosecution in brief is that on 17.1.1997 ASI Lal Chand, Satbir Singh, TehsildarcumExecutive Magistrate, Tosham along with other police officials were going in a police jeep in connection with usual excise checking. When the police party reached at `T'' point Dharan in the area of village Dhani Tiwasa, accused was seen coming having a white gunny bag in his right hand from the side of village Dharan. On the sight of the police party the appellantaccused averted and tried to escape. He was apprehended on the basis of doubt. The gunny bag of the appellant was checked and one jerrican of plastic containing illicit liquor was recovered from the said gunny bag. One Potli (small bundle) was also recovered from the said gunny bag. On checking it was found that Potli was containing Charas in a polythene bag. The case under the Excise Act was investigated separately against the appellant. Out of the Charas recovered, 10 grams was separated for the purpose of sample and on weighing the remaining charas was found 540 grams. 10 grams charas which was separated for the purpose of sample was put in a small tin and was sealed with the seals bearing inscriptions `LC'' and `SS''. Similarly, the remaining charas was put in a plastic box and sealed with seals ``SL'' and `SS''. After keeping the samples, the seals were handed over to Satbir Singh, Tehsildar. The sample, remaining charas and sample seals were taken into possession vide recovery memo Ex.PA. which was attested by Satbir Singh, Tehsildar and Daya Nand, Constable. Appellant could not produce any permit or licence, resultantly ruqa Ex.PB was sent to the police station Tosham for the registration of the case, on the basis of which formal F.I.R. Ex.PB/1 was recorded. Investigating Officer Lal Chand prepared rough site plan Ex.PC of the place of recovery. He also recorded the statements of the witnesses under Section 161 Cr.P.C. The appellant was taken into custody formally and on return to police station the case property was deposited with the Moharrir Head Constable on the same day intact. The report under Section 57 of the Act was also prepared by ASI Lal Chand and it was sent to the DSP. It is the further case of the prosecution that during the course of time the sample was sent to the office of Assistant Chemical Examiner, Govt. of Haryana, Karnal, who found the sample containing charas. On completion of the investigation of the case, the appellant was challaned in the Court of Illaqa Magistrate, who supplied the copies of the documents to the appellant and committed him to the Court of Sessions in order to face the trial vide order dated 13.3.1997. Vide order dated 28.3.1997 the appellant was chargesheeted under Section 20 of the Act. The charge was read over and explained to him, to which he pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined and pressed into service two PWs namely Satbir Singh, TehsildarcumExecutive Magistrate PW1 and ASI Lal Chand PW2. The prosecution also relied upon the affidavits of the formal witnesses besides the report of the Chemical Examiner in order to prove the charge.

Statement of the appellant was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. The appellant denied those circumstances and stated that he has been falsely implicated in this case. He was taken by the police from his house and was involved in this false case. Nothing was recovered from him. In defence the appellant did not examine any witness.

The learned Additional Sessions Judge vide impugned judgment and order convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence the present appeal, which I am disposing of with the sentence rendered by Shri R.A. Sheoran, the learned counsel appearing on behalf of the appellant and Shri Shailender Singh, the learned Deputy Advocate General, who appeared on behalf of the State of Haryana.

The impugned judgment has been read in extenso and has been examined by me with the assistance of the counsel for the parties. A perusal of the impugned judgment would show that the trial Court has not rightly interpreted the facts in hand for the purpose of Section 50 of the Act.

The learned counsel for the appellant has assailed the judgment of conviction of the trial Court by submitting that the mandatory provisions of Section 50 of the Act have not been complied with and in these circumstances the recovery and the trial stand vitiated. On the contrary, the learned DAG submitted that it has been held by the learned trial Court and also it is established from the facts in hand that it was a pure chance recovery when the police party was on excise duty. The police conceived a doubt on seeing the movements of the appellant, who was carrying a gunny bag in his right hand. When the gunny bag was being checked, illicit liquor was found and during the process of the search charas was found and in these circumstances there was no prior suspicion in the mind of the Investigating Officer that the appellant was carrying charas. The learned counsel for the respondent submitted that Section 50 could not come to the rescue of the appellant. Moreover, the Gazetted Officer was already in the police party and in his presence the search was conducted and this tantamounts to substantial compliance of the provisions of Section 50 of the Act.

After considering the rival contentions of the parties, I am of the considered opinion that this appeal is liable to be accepted on account of noncompliance of Section 50. It is true that in the ruqa given by the Investigating Officer it is nowhere mentioned that he conceived a reasonable ground to believe that the appellant was carrying charas. It is equally true that in the statement made by ASI Lal Chand PW2 he has not stated on these lines. But the facts of the case have to be examined in order to repel the submission of the learned counsel for the respondent. It is the admitted case of the prosecution that Satbir Singh, TehsildarcumExecutive Magistrate was earlier in the police party. He was associated by ASI Lal Chand from his office and this officer was apprised the purpose for which the police party was going to patrol in the area. Shri Satbir Singh is a responsible officer. He appeared as PW1 and the relevant lines on which this Court has come to the conclusion that in the present case Section 50 is applicable, can be quoted as follows :

"....On the sight of police party, the immediately averted. We suspected some contraband article in his possession. The constable caught hold the accused...."

Thus the reading of the above relevant lines would show that the seizure party conceived a reasonable suspicion that the appellant was carrying some contraband article in his possession. In these circumstances, Section 50 is applicable. Moreover, it is the case of the prosecution that at the first instance liquor was found from the possession of the appellant. An experienced police officer can immediately jump to a conclusion that the antecedents of such a person are not good. His first doubt would always be that the appellant must be carrying some narcotics or other incriminating article regarding which a separate offence is said to have been committed. In the light of these premises it has been held by the various pronouncements of the Hon''ble Supreme Court and High Court that Section 50 is applicable. It is the admitted case of the prosecution that ASI Lal Chand, the Investigating Officer, did not serve any notice either in writing or oral to the appellant giving him option to exercise his right under Section 50 of the Act. According to this Section, it is the bounden duty of the Investigating Officer to apprise to the person to be searched that he has the right to say whether he wanted to give the search in the presence of a Gazetted Officer or a Magistrate. No such statement of the appellant has been recorded by the Investigating Officer.

The second submission of the learned counsel for the respondent is also not accepted irrespective of the fact that the Executive Magistratecum Tehsildar was already in the police party. The compliance of Section 50 can only be made once the person to be searched has been arrested and thereafter an option is given to him as to whether he wanted to give the search in the presence of a Gazetted Officer or a Magistrate. It has been held in Teja Singh v. The State of Punjab, 1996(2) RCR(Crl.) 754 : 1996(2) RCC 698 that if the Investigating Officer does not give offer to the accused to the effect that if he likes his person can be searched before a Gazetted Officer or a Magistrate, this will amount to noncompliance of the provisions of Section 50 irrespective of the fact that a Gazetted Officer was present with the police party. The Hon''ble single Judge held that mere presence of the Gazetted Officer by itself will not overcome the difficulty and on this proposition the appellant was acquitted in the said case. The above view had been confirmed in Jarnail Singh v. State of Haryana, 1997(4) RCR 657 .

The above aspect of the case has not been rightly appreciated by the learned trial Court. Resultantly, I accept this appeal, set aside the judgment and order of the learned trial Court and acquit the appellant of the charge framed against him.

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

Before I part with this judgment, I may clarify that the acquittal of the appellant in the present appeal will not have any bearing upon the excise case as the acquittal of the appellant has been mainly on the basis that mandatory provisions of Section 50 have not been complied with.

It is stated at the bar by the learned counsel for the appellant that his client is in custody. Let the intimation about the acceptance of this appeal be sent to the jail authorities, so that the appellant may be released forthwith, if not convicted or wanted in any other case.