MAHENDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) Mahender Singh, son of Shankar Lal, resident of village Sarwarpur (hereinafter referred to as the appellant) was charged under Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and was accordingly convicted and sentenced to undergo rigorous imprisonment for ten years, to pay a fine of Rs. one lac and in default to further undergo rigorous imprisonment for two years by the learned AddI. Sessions Judge, Bhiwani. Aggrieved by the same, he was come forward in this appeal.

(2.) The case of prosecution is that on 18.1.1986, Sub Inspector Had Singh of Police Station Siwani along with the police party and Matu Ram (P.W. 1) was on patrol duty in a police jeep. When they reached Saini was Railway Station at about 1.30 p.m. they parked the jeep near Dharamsala and started patrolling along the railway line. They noticed the appellant coming from the side of Jhupa along the line with a gunny bag on his head. On seeing the police party, he tried to retrace and sat in a ditch. On suspicion, he was apprehended. The gunny bag was opened in which there was a tin containing 8 kgs. of opium from which 50 gms. of opium was taken as sample and the residue was kept in the tin (Ex. P1). After sealing sample and the residue separately, the seal was handed over to Matu Ram P.W., and the sample and the residue opium were taken into possession under a memo which was attested by Matu Ram P.W. 1 and others. Ruqa (Ex. PB) was sent to the police station on the basis of which the F.I.R. (Ex. PB/i) was recorded. At the trial before the learned AddI. Sessions Judge, the appellant pleaded not guilty to the charge framed under section 18 of the Act and also pleaded false implication. On the prosecution side, Matu Ram P.W. 1 and Han Singh Yadav (P.W. 2), the then Sub Inspector, were examined (apart from marking the affidavits of a Constable which are not very material for the purposes of our consideration). Relying upon the evidence let in by the prosecution, the learned AddI. Sessions Judge convicted and sentenced the accused as mentioned above against which this appeal has been filed. We have to see whether the conviction of the accused can be sustained.

(3.) One of the points raised by the learned counsel for the appellant in this appeal is that the provisions of Section 50 of the Act were not complied with strictly before the alleged search of the appellant and the alleged seizure of opium, He contends that the provisions of Section 50 are mandatory and non-compliance with the same would vitiate the conviction itself. The learned counsel for the appellant contended that before ever the appellant herein was allegedly searched, he should have been given the opportunity to be taken to a Gazetted Officer or a Magistrate and that was not done in this and, therefore, the alleged search and seizure are illegal. Admittedly, in this case the appellant herein was not offered to be taken before a Gazetted Officer or a Magistrate. The learned counsel for the appellant in this connection relied upon the decision of the Honble Supreme Court in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, in support of his contention. But the facts of the case relied upon by him are different from the facts of the present case. In the case cited by the learned counsel for the appellant, the Sub Inspector of Police received reliable information that a foreigner having charas in his possession was sitting at Quilon Railway Station, went to the platform where a constable was on patrol duty. Then both went to 1st class Waiting Room, found the accused (appellant) sitting there with a bag; on suspicion, questioned him and the accused (appellant) took out a small packet of charas from his bag and handed it over. On further questioning and search, three big packets of charas from the bag, which was in the possession of the accused appellant, were also seized in the place of the witnesses who were present at the spot itself. The accused-appellant, In the case before the Supreme Court, contended that in view of the provisions contained in Section 50 of the Act, it is obligatory for the officer to inform the person of his right, to be searched before a Magistrate or a Gazetted Officer, and that if he so requires he would he produced before a Gazetted Officer or a Magistrate for a search being conducted before them. This contention put forward by the accused-appellant in that case was accepted by the Honble Supreme Court holding that the provisions of Section 50 of the Act are mandatory and non-compliance with the same would vitiate the conviction. It was so held, because the Sub Inspector of Police had prior reliable information about the person on the railway station being in possession of charas, and finding that no offer Was made by the authorised police officer-that the appellant-accused therein, if he requires so, will be taken to a Gazetted Officer or a Magistrate. A contention was raised on behalf of the State that it was for the appellant to require him to be taken to a Gazetted Officer or a Magistrate, and when he had not made such a request. It was not necessary to do so. Honble Supreme Court held that the accused-appellant should be made aware of his right to be searched before a Gazetted Officer or a Magistrate and when no such offer had been made and when the search was conducted by the authorised officer himself, the conviction is vitiated. It was in those circumstances that the conviction and sentence were set aside by the Honble Supreme Court. But in the present case we find from the evidence of P.W. 1, Matu Ram as well as-Sub Inspector Han Singh Yadav P.W. 2 that the police had no prior intimation but were on patrol duty, and while they were going on patrol along the Railway line, they happened to see the appellant in this- case coming with a gunny bag on his heal. They suspected him and searched him and, on search. It was found that he was, in possession of opium. In such circumstances, the contention of the appellant that the provisions of Section 50 of the Act have not been complied with and, therefore; the conviction is vitiated cannot be accepted. In such cases the necessity to comply with the provisions of Section 50 of the Act does not arise. This view is also supported by the decision of Honble Supreme Court in State of Punjab v. Balbir Singh, wherein it was held that if a police officer even if he happens to be an empowered officer effecting arrest or search during normal investigation into an offence, the necessity for complying with Section 50 of the Act does not arise only when he finds a narcotic drug after search he is expected to carry out investigation in accordance with the provisions of the Act from that stage onward. Therefore, in the present case when it is not shown that the police officer had prior intimation about the appellant herein being in possession of a narcotic drug, and when the police party had searched him on suspicion but happened to find in his possession narcotic drug, it cannot be stated that the noncompliance with Section 50 of the Act will vitiate the conviction.