U.T.Chandigarh vs Ram Anchal alias Kalia

M.L. Singhal, J.

According to the prosecution, on 5.12. 1986 at about 2.00 P.M., Head Constable Harmeet Singh of Police Station Central, Chandigarh was present in Sector 10 market, Chandigarh in connection with patrolling and checking of crime. At that time, Constable Dalip Singh and Constable Telu Ram were with him. One Charan Dass came there. On seeing him the Head Constable Harmeet Singh started talking to him. In the meantime, Ram Anchal @ Kalia accused was noticed coming along the road running through Sector 10A. At the sight of the police party, he quickened his pace. It aroused suspicion in the mind of Head Constable Harmeet Singh who apprehended the accused. On his personal search, charas weighing 150 grams was recovered wrapped in a glazed paper from the right side pocket of the pants worn by him. Fifty grams was separated as sample out of the recovered charas. Sample charas and the remaining charas were made into two parcels which were sealed. Those sealed parcels were taken into possession through seizure memo. Ruqa was drafted by Head Constable Harmeet Singh. On this basis of the Ruqa case F.I.R. No. 50, dated 5.12.1986 was registered at Police Station Central, Chandigarh under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 against Ram Anchal @ Kalia. Sample was sent to the Central Forensic Science Laboratory, Chandigarh for analysis. Assistant Chemical Examiner analysed the contents of the sample and found the contents to be charas. After investigation, accused was challaned under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `Act''). The case was committed to the Court of Sessions Judge, Chandigarh. The learned Sessions Judge, Chandigarh discharged the accused vide order dated 12.5.1987.

Aggrieved from the order of discharge passed by learned Sessions Judge, Chandigarh on 12.5.1987, U.T., Chandigarh has filed this revision in this Court. In my opinion, this revision should fail as there was utter non compliance with the provisions of the Act. In fact, the case was investigated as if it was a case under the Punjab Excise Act or under the Opium Act. Head Constable Harmeet Singh did not advert to the provisions of the Act at all. Although he knew that he was investigating the case under the Act and he had got the case registered under the Act. In Section 20 of the Act, the Legislature has provided 10 years imprisonment and a fine of Rs. 1 lac in the minimum. Similar punishment is provided under sections 15, 18 and 21 of the Act. While providing such a stringent punishment, the Legislature thought that there should be some safeguards against false implication. In this case, the provisions of the Act have not been complied with at all. Provisions of Section 55 of the Act have not been complied with. Section 55 of the Act lays down that :

"An officerincharge of a Police Station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that Police Station and which may be delivered to him, and shall allow any officer who may accompany such articles to the Police Station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with seal of the Officerincharge of the Police Station."

Head Constable Harmeet Singh should have taken the sealed parcels to the officerincharge of the police station who should have affixed his own seal on the parcels or the officerincharge of the police station should have taken the samples of charas from them and all samples so taken should also have been sealed with the seal of the officerincharge of the police station. There is noncompliance with the provisions of Section 57 of the Act which lays down that :

"Whenever any person makes any arrest or seizure under this Act, he shall, within fortyeight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."

There is also noncompliance with the provisions of Section 50 of the Act. Section 50 of the Act lays down that :

(1) "When any officer 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."

Provisions of Section 50 are mandatory. Any violation of the provisions of Section 50 will vitiate the trial. Provisions of Section 50 came into play in this case as soon as Head Constable Harmeet Singh entertained suspicion against the accused. From that moment, when Head Constable Harmeet Singh began entertaining suspicion against the accused, he ought to have asked him that he would effect his search and if he wanted, he could be taken to a Gazetted Officer or a Magistrate for search. Strange enough, no such option was given to the accused.

Head Constable Harmeet Singh was not empowered to proceed under the Act. It was held in Criminal Appeal No. 557SB of 1986 Karam Singh v. State of Punjab that Head Constable Sumel Singh was not entitled to arrest the appellant. Neither he could conduct the search in violation of the relevant provisions contained in Chapter 5 of the Act nor the articles recovered, seized or secured in the manner provided for in Chapter 5. In State of Punjab v. Balbir and another, 1994(3) SCC 299, the Hon''ble Supreme Court has held that the provisions of section 50 of the Act are mandatory.

It seems that Head Constable Harmeet Singh was not aware of the provisions of the Act at all and therefore, he investigated the case in complete disregard of the provisions of the Act. In my opinion, the accused was rightly discharged by the learned Sessions Judge. Framing of charge would have been an exercise in futility.

For the reasons given above, this Revision is dismissed.

Revision dismissed.