U.T.Chandigarh vs Subhash Chander

M.L. Singhal, J.

This is criminal revision directed against the order dated 14.5.1987 passed by Sessions Judge, Chandigarh whereby he discharged the accusedrespondent in case FIR No. 71 dated 6.2.1987 of Police Station Central, Chandigarh under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the Act).

Prosecution case in brief is that on 6.2.1987 at abut 2.00 PM, S.I. Jarnail Singh of CIA Staff along with HC Pirthi Singh, constable Balwinder Singh and others was present at the back of Neelam Cinema near local bus stop, Section 17, Chandigarh in connection with patrolling and detection of crime. Devinder Singh PW came there. S.I. Jarnail Singh started talking to him. In the meantime Subhash Chander accused was spotted coming with a raxin hand bag in his right hand from the side of Neelam Cinema. At the sight of the police party Subhash Chander became nervous. It aroused suspicion in the mind of S.I. Jarnail Singh. He accordingly intercepted the accused and subjected him to personal search. On the personal search of the accused charas weighing 1,000 grams was recovered. Out of recovered charas 20 grams was taken out as sample. Sample charas was made into a parcel which was sealed with the seal of S.I. Jarnail Singh bearing impression JS. Similarly the remaining charas was made into a parcel, sealed with seal bearing impression JS. S.I. Jarnail Singh drafted ruqa and sent that ruqa per constable Balwinder Singh to Police Station Central, Chandigarh, on the basis of which case was registered. S.I. Jarnail Singh took other steps in the investigation of the case at the spot. On return to the Police Station, he deposited the sealed parcels containing charas with MHC. Sealed parcels containing charas was sent to the Forensic Science Laboratory where the same was analysed by the Assistant Chemical Examiner who found the same to be charas. After investigation, accused was challaned under Section 20 of the Act.

Case was committed to the Court of Sessions by the Chief Judicial Magistrate, Chandigarh.

Sessions Judge, Chandigarh discharged the accused vide order dated 14.5.1987 as he felt that there had been no compliance with the provisions of the Act which had mandatorily to be complied with.

Aggrieved from this order dated 14.5. 1987 passed by the Sessions Judge, Chandigarh, Union Territory, Chandigarh has come up in this revision to this Court.

The Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted with a view to curb the menace of trafficking in narcotics. With that end in view, the parliament provided stringent punishment for the offences falling within the mischief of that Act. While providing stringent punishment, parliament in its wisdom provided certain safeguards against false implication. In this case there has been no compliance with the provisions of the Act. Investigating Officer investigated the case as if it were a case under the Opium Act or the Excise Act.

Sections 50, 52, 55 and 57 of the Act have not been complied with at all. Sections 50, 52, 55 and 57 read as under:

Section 50 :

"Conditions under which search of persons shall be conducted (1) When any officer duly authorised under Section 423 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 delay to the 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."

Section 52:

"Disposal of persons arrested and articles seized (1) Any officer arresting a person under Section 41, Section 42 section 43 or section 44 shall, as soon as may be, inform him of the ground for such arrest.

(2) Every person arrested and article seized under warrant issued under sub section (1) or section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

(3) Every person arrested and article seized under subsection (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to

(a) the officerincharge of the nearest police station, or (b) the officer empowered under Section 53.

(4) The authority or officer to whom any person or article is forwarded under subsection (2) or subsection (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article."

Section 55 :

Police to take charge of articles seized and delivered 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 a seal of the officerincharge of the police station."

Section 57:

Report of arrest and seizure 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 superior official.

S.I. Jarnail Singh ought to have given option to the accused whether he wanted to be searched in the presence of a gazetted officer or Magistrate after he had entertained suspicion against him. In this case S.I. Jarnail Singh did not advert to the provisions of Section 50 of the Act. In State of Punjab v. Balbir Singh, 1994(3) SCC 299 the Hon''ble Supreme Court observed as follows :

"The words "if the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search could be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires since such a search would impart much more authenticity and credit worthiness to the proceedings while equally providing an important safeguard to the accused. To afford much an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right."

Section 55 casts duty on the officer incharge of Police Station to take charge of 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 article to the Police Station has right to affix his own seal on the sample and the article so seized. The sample also has to have the seal of the officer in charge of the Police Station. On such perfunctory investigation of the case, it would have been an exercise in futility if the accused had been charged and dragged for some time.

So, the impugned order suffers from the illegality or infirmity and as such this revision fails and is dismissed.

Revision dismissed.