Union Territory, Chandigarh vs Ram Parkash

Jai Singh Sekhon, J. (Oral)

We have heard the learned counsel for the parties besides perusing the record.

Ram Parkashappellant was apprehended by Assistant Sub Inspector Shiv Ram of C.I.A. Staff, Chandigarh, on January 28, 1986, at 5.30 p.m. near the chowk of Timber Market, Sector 26, Chandigarh, when he tried to slip away at the sight of the police party. His personal search yielded the recovery of 30 grams of Charas.

After completion of investigation, the accused as arraigned for trial on such like allegations.

The learned Sessions Judge, Chandigarh, framed a charge for offence under Section 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (for short ''the Act'') against the accused. The accused, however, pleaded not guilty to the same and claimed trial. The case was then posted for recording the prosecution evidence. On the later date, the accused moved an application for his discharge by relying upon the judgment of this Court in Karam Singh v. State of Punjab, 1987(1) Recent Criminal Reports 598 : 1987(2) Chandigarh Law Reporter 240 . The trial Court discharged the accused without recording any evidence of the prosecution by observing in para 8 of the judgment as under :

"The learned defence counsel has argued that the said Assistant Sub Inspector, who is represented to have arrested the accused and made the recovery in question from him, having been not specifically empowered by the State Government under Sections 41 and 43 of the Act, for the purposes, and he having not got sealed the packet of the allegedly recovered substance from the Incharge of the Police Station, as contemplated by the provisions of Section 55 of the Act, the arrest of the accused and his alleged search made by the said Assistant Sub Inspector, leading to the stated recovery in question, were without jurisdiction and material irregularity was further committed by not complying with the provisions of Section 55 of the Act, on account whereof, the prosecution case is liable to fail. In order to give strength to his arguments, he has placed reliance upon the ratio of Karam Singh''s case (supra). These arguments must prevail in the presence of this authority wherein, while construing the said provisions of law, his Lordship I.S. Tiwana, J. held in that case in which Head Constable was alleged to have made recovery of the opium from the appellant by making personal search without his having been specifically empowered by the State Government for the purposes under the provisions of Section 41 and 43 of the Act, nor had he got sealed from the Officer Incharge, Police Station, the sealed packet of the recovered substance, in para No. 5, at page 73 that :

"Section 56 then casts a duty on an officerincharge of a Police Station to take charge and keep in safe custody all articles which may be seized under the Act within the local area of that Police Station. While doing so, the officer, who brought the seized articles to the Police Station, has a right to affix his own seal on the sample and the articles seized. The sample also has to have the seal of the officerincharge of the Police Station."

and then at page 75, that

"In the instant case, none of the provisions of Chapter V of the Act, has been complied with. As a matter of fact, these provisions have been followed, if one may say so, more in breach than in compliance. It is, thus, patent that neither the officer arresting, i.e. Head Constable Sumel Singh, (P.W. 3), was entitled to arrest the appellant nor could he conduct the search in violation of the relevant provisions contained in this Chapter, nor has the article, i.e. the opium recovered, been seized or secured in the manner provided for in this Chapter. In the face of these violations of the mandatory provisions of this Chapter, the conviction of the petitioner can, obviously, not stand."

A bare perusal of para 8 of the judgment leaves no doubt that the trial court has not taken into consideration the transitional provisions contained in Section 74 of the Act qua the powers to investigate etc. during the period till no such powers are conferred under Section 41 and 42 of the Act. The judgment of this Court in Karam Singh''s case (supra) on this point was set aside by the apex Court in Criminal Appeal No. 416 of 1988 arising out of S.L.P. (Criminal) No. 1728 of 1987 (State of Punjab v. Karam Singh) decided on August 9, 1988, and the appeal was remaned to the High Court for fresh decision qua nonconsiderating the transitional provisions of Section 74 of the Act. It further transpires that the Full Bench of this court in State of Punjab v. Kulwant Singh, 1994(1) Recent Criminal Reports 303 (Criminal Appeal No. 208 DBA of 1991 decided on December 17, 1993) had observed that noncompliance of provisions of Section 55 of the Act by itself is not sufficient to vitiate the trial; but it depends upon the circumstances of a particular case.

Under these circumstances, there is no escape but to hold that the impugned order of acquittal of the accusedrespondent is not legally justifiable. It is, therefore, set aside by accepting the appeal and remanding the case to the trial court for fresh trial. The accusedrespondent, through his counsel, is directed to appear before the trial court on February 17, 1994.