STATE OF PUNJAB Vs. KULWANT SINGH

JUDGEMENT

(1.) While granting leave to appeal under Section 378(3), of the Code of Criminal Procedure (for short the Code) against the orders of acquittal recorded by different trial Courts for offence under Sections 15, 18 and 21 of the Narctoic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') in Criminal Miscellaneous No. 6116-M-A of 1991, Criminal Miscellaneous No. 6205-M-A of 1991, Criminal Miscellaneous. No. 6469-M-A of 1991 and Criminal Miscellaneous No. 6590-M-A of 1991, the Division Bench of this Court constituted by A. P. Chowdhri and N. K. Kapoor, JJ. noticed the conflict of the views of our High Court in Karam Singh v. The State, 1987 (2) C. L. R. 240; Hakam Singh v. Union Territory of Chandigarh 1988 Cri. LJ 528, Amit Singh v. State of Haryana 1990 (1) C. L. R. 437 and Kuldip Singh v. State of Haryana, 1989 C. C. Cases 183 (H. C.). vis-a-vis the view of the Bombay High Court, in Abdul Satar v. The State, 1989 Cri. LJ 430 (D. B. Bombay High Court), Suraj Mal Kanhiya Lal Soni v. State of Gujarat, 1991 Cri. LJ (May Part) 1483 (D. B. Gujarat High Court) and Richhpal Singh v. The State, 1989 Drugs Cases 97 (1989 Cri LJ 51 NOC) (D. B. Delhi High Court) qua the provisions of Chapter V of the Act being mandatory in the sense that their noncompliance per se would vitiate the trial and prove fatal to the prosecution case. The Division Bench also noticed the observations of the apex Court in State of Maharashtra v. Natwarlal Damodar Soni. AIR 1980 SC 593 (1980 Cri LJ 429) that illegal search will not affect the validity of the seizure and further investigation by the Custom Authorities or the validity of the trial which followed on the complaint of the Collector of Customs in Dr. Partap Singh v. Director of Enforcement, Foreign Exchange Regulation Act, AIR 1985 SC 989 that the illegality in the method, manner or initiation of a search does not necessarily mean that anything seized during the search has to be returned and in Sunder Singh v. State of Uttar Pradesh, AIR 1956 SC 411 (1956 Cri LJ 801) that the irregularity in the search and the recovery in non-compliance of the provisions of Section 103, of the Code would not affect the legality of the recovery proceedings. The Division Bench, after noting the above referred decisions of the apex Court and the High Courts, formed a tentative view that non-compliance of the relevant provisions of Chapter V of the Act would not per se vitiate the trial. However, considering this controversy to be of considerable importance and likely to affect the fate of a large number of cases, the following two questions were posed for decision of the larger Bench :-

(2.) Keeping in view the importance of the controversy involved notice was also issued to the Advocate-General, Haryana although the State of Haryana did not figure as a party in all these matters.

(3.) As only legal controversy qua the provisions of Chapter V of the Act is involved, there is no justification in giving detailed facts of each case except making a short reference thereto. In Criminal Miscellaneous No. 6116-M-A of 1991 (State of Punjab v. Kulwant Singh) the trial Court acquitted the accused respondent on the charge for offence under Section 18 of the Act for the alleged possession of one kilogram of opium mainly on the ground of non-compliance with the provisions of Sections 52, and 57 of the Act. In Criminal Miscellaneous No. 6590-M-A of 1991 (State of Punjab v. Angraj Singh), the trial Court had the order of acquittal of the accused-respondent on the charge for offence under Section 18, of the Act for the possession of one kilogram of opium on the ground of non-compliance with the provisions of Sections 50, 52, 55 and 57 of the Act. In Criminal Miscellaneous No. 6469-M-A of 1991 (State of Punjab v. Smt. Nihal Kaur) the trial Court had recorded her acquittal on a charge for offence under Section 21, of the Act for the alleged possession of 1170 tablets containing disphenhy dramine H. C. L. mainly on the ground of non-compliance with mandatory provisions of Section 50 of the Act. In Criminal Miscellaneous No. 620-M-A of 1991 (State of Punjab v. Harcharan Singh) the trial Court had recorded their acquittal on the charge for offence under Sections 15 of the Act for the alleged joint possession of 15 bags, each containing 35 kilograms of poppy husk, on the ground of non-compliance with provisions of Sections 57 of the Act in not reporting the matter within 48 hours to the next higher officer about the seizure of the poppy husk; besides disbelieving the prosecution evidence on merits of the case.