Shiv Kumar vs State of Haryana

H.S. Bedi, J.

These appeals (Crl. Appeal No. 130DB of 1995 and Crl. Appeal No. 216DB of 1995) arise out of the following facts :

PW3 Inspector Amir Singh SHO of Police Station City Karnal accompanied by PW5 ASI Azad Singh, ASI Devi Dutt, ASI Rajbir Singh, H.C. Ram Dia and some police constables was present at the Karan Gate in Karnal town when he received secret information to the effect that accused Kishan Singh (an employee of the Telephone Department Karnal) who lived in a government quarter was dealing in the sale of opium and that his relative Shiv Kumar accused was his supplier of opium brought from Uttar Pradesh and that if a raid was conducted immediately the two could be apprehended with a heavy quantity of opium in their possession. Finding the secret information to be reliable PW3 Inspector Amir Singh sent ruqa Exhibit P1 to Police Station Karnal for the registration of a case, and an FIR Exhibit PB was duly recorded by Inspector Ram Kishan at 9.35 P.M. A wireless message was also sent to the Additional Superintendent of Police Shri Suresh Sharma PW6 to reach the place. The police party headed by Inspector Amir Singh then reached the residence of Kishan Singh simultaneously with ASP Suresh Sharma (PS6). Kishan Singh accused was found weighing opium with a weighing scale whereas accused Shiv Kumar was packing it in packets. The police party found that four packets each weighing 2.750 kg. had already been prepared and the rest of the opium making a total of 15 kgs. was also found in the possession of the two accused. 250 grams of opium was separated from each of the packets as a sample and the balance was sealed in a big container with the seal of Inspector Amir Singh PW3. One small weighing scale as also a 100 grams weight were also taken into possession. The samples of opium were sent to Forensic Science Laboratory, Madhuban for analysis and the Assistant Chemical Examiner in his report Ex. PF found them to be opium. A challan was accordingly put in court against the accused and as they pleaded not guilty they were brought to trial for an offence punishable under section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the `Act'').

The prosecution in support of its case relied inter alia on the evidence of Inspector Amir Singh PW3, ASI Azad Singh PW5, Suresh Sharma retired ASP as PW6 and also tendered in evidence various documents and affidavits constituting the link evidence in the case.

The prosecution case was then put to the accused and they claimed false implication on account of the fact that Inspector Amir Singh PW3 was annoyed with Kishan Singh accused as he as a member of the Union of P & T employees had been instrumental in fomenting a strike in the department. Accused Shiv Kumar on the other hand stated that he had come to Karnal that very day and after alighting from a Haryana Roadways bus, he was on his way to Beer Badalwa when he had been apprehended by the police, taken to the Police Station Karnal and kept there for some days and then falsely implicated in the present case. This witness also examined himself as DW3 alongwith some other witnesses in defence.

The trial court on a consideration of the evidence came to the conclusion that the provisions of section 50 of the Act were not required to be complied with in the present case as the recovery had not been made on the personal search of the accused but had been made from his residential premises. The Court also found that the nonjoining of an independent witness before the search and seizure was not fatal to the prosecution as Inspector Amir Singh had clearly stated that he had made attempts to join such a witness but without success and that this statement of the Inspector stood corroborated by the evidence of ASI Azad Singh PW5 and the nonjoining of an independent witness could not be sufficient to discard the prosecution case. The trial court nevertheless disbelieved PW6 ASP Suresh Sharma (who has since retired from service) as he had not supported the prosecution when he had been examined at a very belated stage. The court also found that the discrepancies between the statement of the police witnesses were trivial and could be ignored and having held as above, convicted and sentenced both the accused to undergo rigorous imprisonment for 12 years and to the payment of fine of Rs. 1 lac and in default of payment thereof to further undergo rigorous imprisonment for two years. Two separate appeals have been filed by the two convicted accused and both are being disposed of by this judgment. Kishan Singh accusedappellant is stated to have since died, but as a sentence of fine has also been imposed on him, his appeal to that extent still survives.

It has been argued by Mr. Cheema, the learned senior counsel appearing for the accused that the finding of the trial court that as the seizure had not been made from the personal search of the accused but from the premises that Kishan Singh accused was occupying, the mandatory provisions of Section 50 of the Act were not required to be complied with, was erroneous in the light of the Supreme Court judgment in State of Punjab v. Balbir Singh, 1994(1) Recent Criminal Reports 737 and in Mohinder Kumar v. The State, Panaji, Goa, 1995(2) RCR 599 and a Division Bench judgment of this Court in Kulwant Singh and another v. Assistant Collector, Customs, 1996(1) R.C.C. 238. Mr. Cheema has referred to paragraphs 2 and 3 of Mohinder Kumar''s case and has further urged that in case of secret information of the kind suggested in the present case, the proviso to section 42 of the Act had to be complied with and as this had not been done, this flaw too was fatal to the prosecution case.

On the other hand, the learned State counsel has however placed reliance on State of Punjab v. Kulwant Singh, 1994(1) RCR (Crl.) 303 : 1994(1) PLR 535 which has been relied upon by the trial Court.

We have heard the learned counsel for the parties on the aspect and find that the arguments of Mr. Cheema merit acceptance. It is the admitted position that the raid had been organised as a result of secret information which Inspector Amir Singh had received and in that eventuality the provisions of Section 50 of the Act had to be complied with mandatorily as held by the Supreme Court in Balbir Singh and Mohinder Kumar''s cases (supra). In Balbir Singh''s case the Hon''ble Supreme Court while dealing with a search that had been conducted on prior secret information with the police with regard to the activities of the accused, it was observed as under :

"On prior information, the empowered officer or authorised officer while acting under Section 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a gazetted officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the gazetted officer or the Magistrate, would amount to noncompliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact."

We also agree with Mr. Cheema that Sections 42 and 43 when read along with the words "search any person" appearing in Section 50 of the Act envisaged a search not only from the person of the accused but even from his possession and that would include any building, conveyance or enclosed place, as this has been held in Kulwant Singh v. Assistant Collector''s case (supra). To our mind, the finding of the trial Court that as the seizure had been made not from the personal search of the accused but from the residential premises belonging to Kishan Singh, Section 50 of the Act was not required to be complied with is therefore erroneous.

We also agree with Mr. Cheema that the proviso to Section 42(1) of the Act has also not been complied with. The Hon''ble Supreme Court in Balbir Singh''s case (supra) observed that if a raid was conducted between sunset and sunrise, the proviso to Section 42(1) of the Act provided that the police officer should record the grounds of his belief that he had personal knowledge that the offences under Chapter IV of the Act had been committed and that the raid would brook no delay as it would render the search unsuccessful and the recording of these reasons was mandatory and the contravention of the same would vitiate the trial. Admittedly, no such reasons have come on record justifying the action of Inspector Amir Singh in making the raid at 9.35 p.m. i.e. within the hours of sunset and sunrise.

We have also considered the prosecution evidence in the matter and find that a serious doubt is cast on the prosecution case as PW6 ASP Suresh Sharma had deviated completely from the prosecution case that had been set out with the result, he had been got declared hostile by the Public Prosecutor. As the seniormost police officer involved in search had not supported the prosecution, we are of the opinion that no reliance could be placed on the other material witnesses who were themselves police officers.

These appeals are accordingly allowed. The two accusedappellants are acquitted of the charges levelled against them.

Appeals allowed.