State of Haryana vs Tulsi Devi

V.K. Bali, J.

The State of Haryana through present appeal filed by it has challenged the order of acquittal recorded by Shri K.K. Chopra, Additional Sessions Judge, Hissar dated 19.7.1991.

Respondent Tulsi Devi was tried for an offence punishable under section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Briefly, the case of the prosecution was that on 22.5.1990 when the police party consisting of ASI Baljit Singh, H.C. Chand Singh, H.C. Hawa Singh, H.C. Roop Chand and other police officials were present near AVS Club near office of Forest department, Hissar, PW Karela Ram met the police party. ASI Baljit Singh started talking with him. In the meanwhile respondent Tulsi Devi and one boy named Raj Singh were spotted coming from the side of bypass who on seeing the police got scared and started walking briskly towards the bushes on their right side. On apprehension they were arrested for purposes of interrogation and search. ASI Baljit Singh recovered 20 Kg. opium from the bag which she was carrying on her head at the time of her apprehension. Out of this a sample of 100 gms was taken out. The recovered opium was made into two separate parcels which were properly sealed and were taken into possession vide recovery memo Ex.PF. Ruqa Ex.PH was sent to Police Station City, Hissar for registration of the case upon which formal F.I.R. Ex.PH/1 was recorded. On the allegations as referred to above, the prosecution relied upon the statement of PW1 Karela Ram, PW2 Inspector Jai Narain and PW3 ASI Baljit Singh. After resultant trial as referred to above the learned Additional Sessions Judge recorded a finding of acquittal. While acquitting respondent Tulsi Devi it has inter alia been found that section 50 of Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) was not followed. The learned Additional Sessions Judge also recorded a finding that the provisions of section 51(2) and 50(4) were also not followed.

There is no need at all to go into evaluation of provisions contained in sections 52(1) and 50(4) as we are quite satisfied that respondent Tulsi Bai was entitled to an order of acquittal on account of nonobservance of the provisions contained in section 50 of the Act. Mr. Varinder Singh, learned Counsel representing the appellantState, however, vehemently contends that the judgment relied upon by the trial Judge in Amrit Singh v. The State of Haryana, 1990(2) R.C.R. (Crl.) 525 : 1990(1) CLR 437 on the basis of which provisions contained in section 50 have been held to be mandatory and Tulsi Devi respondent has been acquitted, impliedly stands overruled by the Full Bench of this Court in State of Punjab v. Kulwant Singh, 1994(1) R.C.R. (Crl.) 303 : 1994(1) All India Criminal Reporter 682 . We have heard the learned Counsel for the appellant and gone through the records of the case. Even though it may be true that the judgment relied upon by the trial Judge in Amrit Singh v. The State of Haryana, 1990(2) R.C.R. (Crl.) 525 (supra) has been impliedly overruled yet in the facts and circumstances of this case it shall not make any difference as concededly the Full Bench of this Court has held that an offer made to the accused with regard to his/her being searched by a Gazetted Officer has to be denied by him/her in writing. In other words, the statement of the accused denying an offer of search by a Magistrate/Gazetted Officer has to be recorded in writing and signed by the accused. In the present case even though the statement of Smt. Tulsi Devi is said to have been recorded in Ex.PD but in the totality of the facts and circumstances of this case, reliance cannot be placed upon that. Notice Ex.PD dated 22.5.1990 no doubt contains the statement of Tulsi Devi which reads as follows :

"I do not want to get my search conducted before the Magistrate or gazetted police officer. I have faith in you. You can get my search conducted."

The notice Ex.PD is stated to have been attested by Karela son of Zhanda Ram. If one is to go by the statement of Karela son of Zhanda Ram, it would be apparent that in all probability he was not present at the scene of occurrence and it appears that his attestation was obtained after recovery had since already been made. Karela Ram while making a statement as PW1 clearly stated in the crossexamination that he was illiterate and Thanedar had told him that they had secured opium and you (Kerela Ram) have been made witness in this case. It may be recalled that in examinationinchief he stated that he was coming from Dhansu village and when he had reached ner Aerodrome, the police party had met him. He had given no reason of his being present at the place of recovery. Be that as it may it is clearly made out as mentioned above from his crossexamination that he was not present at the scene of occurrence. That being so, no reliance at all can be placed upon Ex.PD which is said to have been signed by respondent Tulsi Devi declining offer to be searched by a Gazetted Officer/Magistrate. In this view of the matter it cannot be said that the provisions of Section 50 of the Act were meticulously followed.

There is no merit in this appeal and the same is dismissed.