Vijay Shankar vs State of Punjab .

H.S. Bedi, J. (Oral)

This judgment will dispose of Crl. Appeal No. 205SB 1995 and Crl. Appeal No. 206SB1995.

The appeal arises out of the following facts :

On 10.10.1991 Sub Inspector Lal Chand then posted in Police Station, City Sunam, along with Head Constable Jagmail Singh and Constables Satnam Singh and Om Parkash were on their way back to Sunam from Sheron crossing on motorcycles when they spotted the accused sitting on three bags lying under a Tahli tree. The accused on seeing the police party tried to conceal himself which aroused the suspicion of the police party and he was duly apprehended in the presence of one Jasdev Singh who happened to be present at that time. The Sub Inspector then gave an option in terms of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ''Act''), but the accused reposed confidence in the police party and was accordingly subjected to search by Sub Inspector Lal Chand and three bags each containing 35 Kgs of poppy husk were seized. A sample of the poppy was taken out and sent for analysis whereas the case property was duly sealed. From a further search of the accused one spring actuated knife which he was carrying without a licence was also recovered. On the basis of the two recoveries two first information reports, the first FIR No. 210 and the second FIR No. 211 were registered on 10th October, 1991 under the Act and under the Arms Act respectively. On completion of the investigation, a challan was duly filed and as the accused pleaded not guilty, he was brought to trial.

The trial court dealing with the case under the Act came to the conclusion that the recovery of the contraband stood proved from the evidence of Head Constable Jagmail Singh PW.1 and Inspector Lal Chand PW.2; that the provisions of Section 50 of the Act were not required to be complied with as there was no prior information with the police and in any case, the offer under Section 50 of the Act had been made by Sub Inspector Lal Chand PW.2 and having held as above convicted the accused for that offence. In the connected case under the Arms Act also the aforesaid witnesses were believed and the accused was accordingly convicted thereunder as well. As indicated, both these appeals are being disposed of by this judgment.

Mr. Baljit Puri, the learned counsel appearing in support of the appeals, has urged that the Full Bench of this court in State of Punjab v. Kulwant Singh, 1994(1) RCR 303 had observed that it was desirable that in actual practice the statement of the suspect as to whether an offer under Section 50 of the Act had been made or not and the reply given by the accused needed to be recorded and has further urged that this observation had been made while holding that the provisions of Section 50 of the Act were in fact not mandatory and their noncompliance did not vitiate the prosecution. He has further urged that in State of Punjab v. Balbir Singh, 1994(1) RCR 736 , the Supreme Court has finally settled the issue and held that the provisions of Section 50 of the Act were mandatory and to that extent the judgment in Kulwant Singh''s case (supra) stood nullified but this factor made it all the more necessary that the offer made and the reply given should be in writing as without it, it would be very difficult for both the parties, that is, the prosecution as also the accused to prove otherwise.

As against, this, Mr. Gill, the learned AAG has urged that section 50 of the Act in terms did not require that the offer made to the suspect was required to be in writing as in Balbir Singh''s case the Supreme Court had indicated that the only right that existed for the benefit of the accused was to be informed of his right thereunder and nothing more.

I have considered the respective arguments of the learned counsel for the parties and find that the argument of Mr. Puri does not merit. In Kulwant Singh''s case (supra) the Full Bench did indicate that it was desirable that the offer made under section 50 should be recorded and these observations were made in the context that the provisions of section 50 were not mandatory. In the light of the Supreme Court judgment in Balbir Singh''s case (supra) however, holding the provisions of section 50 to be mandatory, I think that it is even imperative that the offer under section 50 of the Act should be made to the suspect in writing and his statement recorded either ways. This to my mind would be in the interest of both the prosecution as also the accused.

Mr. Puri has then argued that even assuming for a moment that an offer in writing had been made as has been suggested by Sub Inspector Lal Chand PW2 in his crossexamination but it was evident from the file that no such memo existed on record and as such the prosecution story was liable to be disbelieved on this ground as well. In this connection, he has cited a Division Bench decision in Suraj Bhan v. State of Haryana, 1995(3) RCR 515 in which it has been observed that the bald statement of the investigating officer with regard to the compliance with the provisions of section 50 of the Act was not acceptable in the light of the fact that the notice in writing which is alleged to have been served on the accusal was not on the file. The facts of the case before me are akin to the case before the Division Bench. Once it is held that the involvement of the accused in the offence under the Act is doubtful, the conviction under the Arms Act too based on the same evidence would be equally implausible.

For the reasons recorded above, both the appeals are allowed, the judgments under appeal are set aside and the accused is acquitted of the charges alleged against him.