Paul Osumba vs State of Haryana

G. S. Chahal, J.

Paul Osumba, a native of Kenya and a student of Khalsa College, Amritsar was tried for an offence under Section 22 of the Narcotic Drugs and Psychotropic Substances Act" 1985 (the Act in short) by Shri B. L. Singal, Additional Sessions Judge, Sonepat. He was convicted for that offence and sentenced to rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/ and in default thereof, to further undergo RI for two years. Feeling aggrieved against his conviction and sentence, he has come to this Court in appeal.

The prosecution allegations, in brief, are to the effect that on 851989, HC Hori Lal, along with Constable Gulshan Kumar, produced the appellant before SI Satish Kumar, with one bag of Raxin and one attachi belonging to him. HC Hori Lal had confirmed that as soon as train ShanePunjab, running from Ambala Cantt. to New Delhi stopped at Railway Station Sonepat, he had received secret information that the appellant was carrying Narcotic with him and it was on that information that he had brought the appellant and his luggage. The SI then made enquiry from the appellant if he desired that his search should be conducted in presence of a gazetted officer or a Magistrate. The appellant, however, did not want any such officer to be present and his search was then carried out in presence of Kanwal Singh, HC Hari Lal and Constable Gulshan Kumar. From the Raxin Bag, two small bags of cloth were recovered. They were found to contain smack, wrapped in glazed envelopes. The same, on weighment was found to be 2 Kg. 10 grams was taken out by way of sample from each packet. Samples and the remaining bulk were sealed in separate parcels. The formal First Information Report was got recorded. After sealing the sample and the bulk smack, the same were taken into possession and subsequently deposited with the MHC. The sample were forwarded to the Chemical Examiner for analysis.

At the trial, the prosecution examined Jai Narain Garg, HC Mohinder Pal Singh,, ASI Sube Singh, HC Hori Lal, and Sl Satish Kumar. Kanwal Singh was, however, given up as having been won over by the appellant. Statements of the formal witnesses were tendered and the report of the Chemical Examiner was also tendered.

The appellant, when examined, denied the prosecution allegations. He pleaded that he was proceeding to Delhi on way to his country Kenya. No intoxicating material was recovered from him. An unclaimed brief case was lying there in the train and if something was recovered from the same, it was falsely planted on him. He, however, did not lead any defence.

HC Hori Lal (PW 4) is a Police official who claims to have acted on secret information. According to the version offered by him, he was on patrol duty in train ShanePunjab. As soon as the train stopped at Railway Station Sonepat he received secret information to the effect that in the next compartment, one person of black complexion was sitting near the window and in his bag two packets of intoxicating material were contained. He then visited that compartment in the company of Constable Gulshan Kumar. He enquired from the appellant if the bag and the attache case belonged to him. The appellant affirmed that, the goods in question did belong to him. He then brought down the said luggage and also the appellant. SI Satish Kumar (PW 2) confirmed that on search of the bag Ex. P 1, clothes of the appellant Ex. P 2 to P 9, Passport P 10 and 2 small bags were recovered. The appellant affirmed in his statement that the brief case and the Raxin bag belonged to him, but that there was another brief case that was lying unattended and recoveries were effected from the same.

Both the witnesses to the search and recovery are Police officials. The independent witness who was associated at the relevant time was not examined. The recovery had been effected at the Railway Station Sonepat where a large number of persons, including the railway officials, must have been present. It is a well recognised rule of caution adopted by the Court to look for corroboration to the testimony of a Police Official, especially in a case where time and place were such that independent witnesses could be available, but were not duly joined.

The search, in the present case, was not carried out before a gazetted officer and the provisions of Section 50 of the Act, which are mandatory in terms, were not complied with. The safeguard provided by the said provisions of law is said to have been waived by the appellant. To prove this fact, we have the statements of two prosecution witnesses. In a Division Bench judgment of the High Court. of HimachalPradesh in State of Himachal Pradesh v. Sudarshan Kumar, 1989(2) Recent Criminal Reports 317 (DB) : 1989(2) Chandigarh Law Reporter 240 it was held that under Section 50 of the Act the person about to be searched must be informed of his right to be searched in the presence of a Magistrate or a Gazetted Officer. Violation of this provision would per se be fatal to the prosecution case. It was further observed that such offer should as far as practical be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case. These observations of the Division Bench of the Himachal Pradesh High Court were followed by a Division Bench of this Court in Cr. A. No. 513DB of 1987, Amrit Singh v. The State of Haryana, 1990(2) RCR(Crl.) 525 (P&H) : decided on 27.9.1989. Applying the above principles to the case in hand, I am of the view that the offer allegedly made to the appellant with respect to his search to be made before a Gazetted Officer or a Magistrate at the relevant time, cannot be accepted in the absence of independent evidence and as such the provisions of Section 50 of the Act were not complied with and the search of the appellant in the present case is illegal. The same vitiates the entire proceedings.

For the foregoing reasons I accept the appeal and after setting aside the order of conviction and sentence, acquit the appellant He shall be released forthwith, if not wanted in any other case. Fine if deposited shall be refunded.