BHAJAN SINGH @ HARBHAJAN SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) BHAJAN Singh appellant was tried and convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) for keeping in his possession 5 Kgs. of poppy husk without any permit or licence and was sentenced to undergo rigorous imprisonment for ten years vide order of Sessions Judge, Kurukshetra, dated 23rd of September 1986. Aggrieved against his conviction and sentence Bhajan Singh appellant has filed Criminal Appeal No. 610-SB of 1986 whereas State of Haryana has filed Criminal Appeal No. 78-SB of 1987, on the ground that after recording conviction and sentence of imprisonment the trial Court has failed to impose fine as is mandatory under the provisions of the Act. As common questions of law and fact are involved in both these appeals, they shall be disposed of by one order.

(2.) IN brief facts of the prosecution case are that on 28th December, 1985, ASI Phool Singh along with other Police officials was present at Bus Stop Jyotisar on patrol duty and for detection crime. At about 4 p.m. that day, Bhajan Singh appellant was seen coming from the side of village Jyotisar. On seeing the Police party he tried to slip away. On suspicion he was apprehended by the said ASI and from his personal search 5 Kgs. of poppy husk was recovered from the cloth bag which the appellant was carrying. 200 gms. of poppy husk was drawn as sample. Both the sample and the remaining poppy husk were duly sealed and taken into possession through seizure memo. After completion of the investigation and on receipt of the report of the Chemical Examiner, the appellant was challenged trial, convicted and sentenced, as stated earlier.

(3.) THE learned counsel for Bhajan Singh appellant submitted that in the instant case ASI Phool Singh was not duly empowered to conduct search of the appellant for violation of the provisions of the Act as contemplated under Section 42 of the Act. State of Haryana issued notification No. S.O.103/C.A.61/61/85/S.42 and 67/86 dated 29th December 1986 whereby the police official above the rank of Assistant Sub Inspector in the police had been empowered to perform his duties specified in Section 42 within the area of their respective jurisdiction. It is thus quite patent that ASI Phool Singh was not legally empowered to search the appellant Bhajan Singh for recovery of contraband article allegedly recovered in this case. Apart from that there is non-compliance of the mandatory provisions of Section 50 of the Act whereby it was obligatory on the Police Officer concerned to inform the person to be searched if he requires that he shall be produced before a Gazetted Officer or a Magistrate as provided under the Act. Failure on the part of ASI Phool Singh to inform Bhajan Singh appellant about the provisions of Section 50 and non-compliance thereof also vitiates the trial. I find support in my view from the authoritative pronouncement of their lordships of the Supreme Court in State of Punjab v. Balbir Singh, 1994 (1) Crimes 753 as well as Division Bench judgment of this court inState of Punjab v. Shaminder Singh, Crl.A. No. 432-DBA of 1985 decided on 5th May 1994.