Shamsher Singh alias Shera vs State of Punjab

K.K. Srivasatava, J.

This is an appeal filed by Shamsher Singh alias Shera against the judgment and order dated October 1, 1986 passed by the Additional Sessions Judge, Jalandhar, convicting the appellant under Section 15 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter called ''the Act'') and sentencing him to suffere rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,00/. In default of payment of fine, the appellant was ordered to undergo further rigorous imprisonment for one and a half years.

On December 25, 1985, Head Constable Gurdip Singh and Constables Varinder Chand and Gurmit Singh were returning to Police Post Rahon after investigation of a case against one Avtar Singh. Accusedappellant Shamsher Singh alias Shera was supotted by the police personnel near village Sahota. the appellant tried to make his escape good on seeing the police party, but he was soon apprehenced on suspicion at the spot. The personal search of the accusedappellant yielded recovery of 21/2 kilograms of poppy husk contained in a bag 250 grams of poppy husk was separated as sample while the remaining poppy husk was selaed in the same bag the seizure memo (Exhibit P.C.) was prepared and a ruqa (Exhibit P.D.) was sent for registration of the case at the Police Station where a formal First Information Report (Exhibit P.D./1) was recorded by Assistant Sub Inspector Narindr Singh. The site plan of the place of recovery was prepared as Exhibit P.E. by Head Constable Gurdip Singh. After the investigation, the accused was challenged by Sub Inspector Gurpal Singh.

The case against the accused was committed to the Court of Sessions, where he was charged under Section 15 of the Act and on his pleading not guilty to the charge, he was tried.

The prosecution examined Constable Varinder Chand (P.W. 1), Head Constable Gurmit Singh (P.W. 2) and tendered in evidence the report of the Chemical Examiner (Exhibit P.F.) and affidavits on the formal witnesses regarding the link evidence.

The accused was examined under Section 313 of the Code of Criminal Procedure wherein be took the plea that he was addicted to poppy husk and occasionally he consumed the same. He stated that he kept poppy husk in a small quantity for his own consumption. He had strained relations with his brotherinlaw, who had got him falsely implicated in this case. He led evidence in defence and examined Jagir Singh (D.W. 1) and Dr. S.P. Singh Grover, Medical Specialist, New Ruby Hospital, Jalandhar (D.W. 2). The accused claimed benefit of the provisions contained in Section 27 of the Act.

The learned trial Court held that in the facts and circumstances of the case, the accused Shamsher Singh was not entitled to claim the benefit under Section 27 of the Act and further found that the prosecution had proved the charge under Section 15 of the Act against him. The trial ended in the conviction of the accused under Section 15 of the Act and he was sentenced, as mentioned above.

None appeared for the appellant. Mr. S.S. Dhaliwal, the learned Deputy Advocate General, Punjab, has taken me through the judgment under appeal and the evidence on record.

At the very outset, it may be pointed out that, in the instant case, the personal search of the appellant was made by Head Constable Gurdip Singh in the presence of two police constables. The search was not made in the presence of a Gazetted Officer or a Magistrate. Section 50 of the Act provides for the conditions under which search of persons shall be conducted. It lays down as under :

"50. Conditions under which search of persons shall be conducted. (1) When any of 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 him before the Gazetted Officer or the Magistrate referred to in subsection (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) No female shall be searched by anyone excepting a female."

A Full Bench of this Court has, in The State of Punjab v. Kulwant Singh, 1994(1) RCR 303 (FB) : 1994(1) Chandigarh Law Reporter 198 , held that the provisions of Section 50 of the Act are mandatory and the non observance of the mandatory provisions would go to the root of the case and would render the search and the recovery made from the accused in contravention of the provisions of Section 50 of the Act, contrary to law. It was held further that in such a case of noncompliance of the mandatory provisions of Section 50 of the Act, the conviction and sentence of the accused could not be sustained. The provisions of Section 27 of the Act, in the instant case, were not applied to the appellant by the learned trial Court which proceeded to consider the said benefit on the basis of the statement made by the it. I am of the considered view that the provisions of subsection (2) of Section 27 of the Act are of no relevance till it is proved by the prosecution, according to law, that in a lawful search made under the provisions of Section 50 of the Act, the recovery of any narcotic drug or psychotropic substance was made from the accused. It is only after the recovery of any such substance according to law that plea of the accused taken in defence would have any relevance.

In result, this appeal is allowed, the conviction and sentence passed against the appellant under Section 15 of the Act are set aside and he is acquitted of the charge under Section 15 of the Act.