STATE OF HARYANA Vs. RANBIR ALIAS RANA

JUDGEMENT

(1.) The State of Haryana is in appeal before us from a judgment and order dated 19. 08.1998 of the High Court of Punjab and haryana in Criminal Appeal No. 715 of 1996 allowing the appeal preferred by the respondent herein from a judgment of conviction and sentence dated 05. 08.1996 passed by the learned Additional and Sessions Judge in Sessions Case No. 37 and Sessions Trial no. 118 of 1994 under Sections 20 of the narcotic Drugs and Psychotropic Substances Act (for short, 'the Act').

(2.) The prosecution case against the respondent was as under :1. On 15.11.1993 when a police party, comprising of Sub-Inspector Dunger Singh, constable Randhir Singh, Head Constable omkar, Constable Umed Singh and Head constable Om Prakash, were proceeding from Bamla to CIA staff Bhiwani and reached the point on Rohtak-Bhiwani Road near Sanjeev M. College, the respondent was seen coming from the opposite direction, i. e. , from the side of Bhiwani on foot, holding a plastic bag of white colour. Having seen them, the respondent allegedly turned towards his left side on the road as a result whereof a suspicion as regard his conduct arose in their mind. The respondent was, thereafter, taken into custody. A notice was allegedly served on the respondent by the Sub Inspector to the effect "you (accused) have some contraband in your possession and your search is to be effected in the presence of a gazetted police officer or a magistrate", if he so desired. The respondent is said to have had no objection if the search was conducted in presence of a gazetted officer or a magistrate available at the spot. An intimation was thereafter sent to the DSP, Headquarters, bhiwani who reached the spot along with his staff. The respondent was allegedly searched in his presence and on a search of the plastic bag, which the respondent was carrying, a 'pipi' containing 'charas' weighing 2 kg. was found. The incharge of the police party separated 50 grams of 'charas' by way of sample of the seized contraband and made a sealed parcel thereof. Remaining amount of the seized article was said to have been separately sealed and the entire property was taken into possession wherefor a recovery memo, was prepared. The respondent accused could not produce any licence or permit for possession of the said contraband articles. Therefore a 'ruqa' was sent to the police station for registration of the case and a formal First information Report was lodged. 2. On charged of possession of the said contraband article, the respondent was put on trial. 3. The learned Sessions Judge found the appellant to be guilty of the said offence and sentenced him to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. 1,00,000/ -. The respondent filed an appeal thereagainst before the High Court. 4. Before the High Court only contention which was raised was that the mandatory provision of Section 50 of the Act had not been complied with. According to the respondent although the article in question was found from a bag, it was obligatory on the part of the Dy. S. P. to bring it to his notice that he had a right to be searched by a magistrate or a gazetted officer and he having not been informed of his right, the judgment of conviction and sentence was vitiated in law. 5. The High Court in its judgment proceeded on the basis that Section 50 of the act is mandatory in character. It was held : "reverting to the facts in hand, the notice, exhibit PW-4/a, is very material. A close reading of this notice only indicates that SI Dungar singh had given the option to the appellant by informing him that his search was to be conducted in the presence of a gazetted police officer or a magistrate. Beyond that, he notice, exhibit PW-4/a is silent. SI Dungar singh never apprised the appellant that he had the right to be searched in the presence of a magistrate or a gazetted officer as mentioned in Section 42 of the Act. Even the reply, exhibit PW-4/b, given by the appellant is not in consonance with the provisions of Section 50 of the Act. The reply simply states that the appellant was ready to give the search in the presence of a Magistrate or a gazetted police officer at the spot. Further, the accused has stated vide exhibit PW-4/b that he had full confidence in the I. O. Strange enough, the reply of the appellant has not been attested by HC Randhir Singh or HC Om Kar who, of course, have attested the notice, exhibit PW-4/a, allegedly given by SI Dungar Singh. This indicates that PW-4/a, and PW-4/b have been prepared at a different state and, unfortunately, for the benefit of the appellant. . "

(3.) The question as regards applicability of section 50 of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different benches as also difference of opinion between two judges of this Court in State of Himachal Pradesh v. Pawan Kumar the question was referred to a larger Bench. A three-Judge bench of this Court in State of Himachal pradesh etc. v. Pawan Kumar relying on or on the basis of a large number of decisions and in particular the decision of the constitution Bench of this Court in State of Punjab v. Baldev Singh clearly held that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying.