Mohd.Ramzan Khan vs State of Punjab

Mehtab S. Gill, J.

It is alleged by the prosecution that Mohd. Ramzan Khan, a Pakistani National, came to India by the Lahore Express on July 30, 1987 at 9.40 P.M. After completion of health and immigration formalities, the movements of the accused became suspicious. Shri K.K. Sharma, Customs Inspector was directed by Shri Baldev Singh, Superintendent to check the baggage of the appellant in the presence of witnesses. On search of his baggage, in the presence of Ashok Kumar and Sukhdev Singh a polythene bag containing some brown powder was recovered. The appellant told the Inspector that it was heroin meant for delivery at Bombay. Items of clothes were also searched and three slips containing addresses of persons in Bombay and Karachi were found. The heroin and the three slips were taken into possession through a recovery memo. Thereafter a Panchnama giving the details of the recovery was prepared and the same was attested by the witnesses and the accused. The statement of the appellant was recorded by the Superintendent Shri Baldev Singh. Before the recovered heroin was sealed, three samples were taken out. One of these samples was sent to the Chemical Examiner and a telegraphic test report was received on August 14, 1987 confirming that the sample was of diacetylmorphine or heroin. It was on these facts that Assistant Collector of Customs Shri S.S. Sekhon presented the complaint before the Chief Judicial Magistrate, Amritsar on August 21, 1987 who committed the case to the Court of Sessions.

Chargesheet under Sections 21 and 23 of the Act was framed against the appellant who pleaded not guilty to the same and claimed trial.

At the trial, the prosecution examined six witnesses. The statement of the appellant was recorded under Section 313 Cr.P.C. He denied the material prosecution allegations and put forth the following version :

"I am innocent. On 30.7.1987, I arrived at Land Customs Station Attari through valid documents. After immigration, I deposited my passport at counter number 7 and presented myself for customs clearance. I declared that I had brought 100 metres of cloth, 2 kilograms of Kishmish, two kilograms of Khurmani, 1 almond Kernels, six pairs of Chappals and Rs. 300/ in Pakistani currency. Customs Inspector K.K. Sharma demanded a share in the above goods for clearing the baggage at which I replied that I had come after a long time to meet my relatives and friends and these were presents for my relatives in India. K.K. Sharma did not agree with me and insisted for his share upon which we exchanged abuses and I was falsely implicated in this case. Later on my signatures on blank papers were obtained."

After trial, the appellant was convicted under Sections 21 and 23 of the Act and sentenced as under :

Under Section 21 Ten years rigorous imprisonment and to pay a fine of Rs. one lac or in default of payment of fine, to further undergo four years rigorous imprisonment.

Under Section 23 Ten years rigorous imprisonment and to pay a fine of Rs. one lac or in default of payment of fine, to further undergo four years rigorous imprisonment.

Both the substantive sentences of imprisonment were ordered to run concurrently.

Feeling aggrieved, the appellant has filed this appeal.

I have heard Shri G.S. Jaswal, Advocate with Mrs. Asa Jaswal, Advocate for the appellant and Shri Anmol Rattan Sidhu, Deputy Advocate General for the State of Punjab and have carefully perused the record.

The learned counsel for the appellant submits that before the search, the mandatory requirement as envisaged under Section 50 of the Act has not been complied with by the prosecution. He submits that the mandatory requirement that before searching the person of the appellant, he was not asked whether he wanted to be searched before a Gazette Officer or a Magistrate and in the absence of fulfilment of the said mandatory requirement, the entire prosecution case is bound to fail.

Before delaing with the argument of learned counsel for the appellant, it is necessary to reproduce Section 50 of the Act.

"50. Conditions under which search of persons shall be conducted (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, 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.

(2) If such requisition is made, the officer may detain the person until he can bring the Gazetted Officer or the Magistrate referred to in sub section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) xx xx xx"

A bare reading of Section 50 of the Act shows that there is requirement enjoined upon the arresting officer to take the accused to the nearest gazetted officer of any of the departments mentioned in the Act or to the nearest Magistrate. The option to be searched before the gazetted officer or before the Magistrate is to be given by the arresting officer to the accused and after that option is given, it is his choice whether to opt for a gazetted officer or a Magistrate. The requirement of law is that such an option must be given. If such option is not given, there is noncompliance with the mandatory provisions of Section 50. In the Act, the legislature has provided stringent punishment to the person in possession of opium, poppy husk, heroin etc. While providing stringent punishment to the person in possession of such contrabands, the legislature was aware that there might be false implication at the hands of some unscrupulous police officers etc. and to obviate such false implication, the legislature in its anxiety provided certain safeguards to the accused which are embodied in section 50 as also in other provisions. Noncompliance with these provisions will render the prosecution doubtful. In the instant case, there is no evidence brought on the record that the arresting officer gave any option to the accused to be searched before a gazetted officer or a Magistrate. Rather, P.W. 1 Shri K.K. Sharma, Inspector Customs candidly admitted that before commencing the search of the accused, he did not ask him if he wanted to be searched in the presence of Superintendent.

In the light of above discussion, I am of the considered view that the prosecution case should fail for noncompliance of mandatory provisions of Sections 50.

Resultantly, this appeal is accepted. The judgment of the Court below is set aside and the appellant is acquitted of the charge framed against him.

The appellant shall stand discharged from his bail bonds and surety bonds.