KULWINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE appeal arises out of the following facts: On 19.12.1985 Head Constable Sewa Dass and Head Constable Sumel Singh and three Constables were coming from Village Sahndra towards Shamchaurasi in connection with police patrolling. When the police reached near village Jandi, accused Kulwinder Singh was seen coming from the opposite side and on seeing the police party he changed direction. This conduct of the accused raised a suspicion in the mind of Head Constables Sewa Dass and he was accordingly apprehended and on his personal search opium subsequently found to weigh 50 grams was recovered from the pocket of the pant which he was wearing. On the basis of the recovery a formal F.I.R. Ex. PB/1 was duly registered and on completion of the necessary investigations, the accused was charged under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act'). The prosecution in support of its case relied on the evidence of Head Constable Sumel Singh PW -1, Sewa Dass Head Constable as PW -2 and also the other place of incriminating evidence relevant to the case. The accused when examined underSection 313 Criminal Procedure Code, denied the prosecution allegations and pleaded false implication. He also examined two defence witnesses namely Ved Parkash Sharma PW -1 and Paramjit Singh Draftsman as DW -2 and also tendered into evidence photographs Ex. D -1 to D -3 and their negatives Ex. D -4 to D -6. The trial Court on a consideration of evidence, came to the conclusion that though no independent eye witness had been joined at the time of the search yet the evidence of the police witnesses inspired confidence which was sufficient to link the accused with the crime. The court further found that the defence version was not liable to be believed and having held to above, convicted and sentenced the accused to R.I. for 10 years and a fine of Rs. 1,00,000/ - (One lac.) and in default of payment thereof to undergo R.I. one year more. Hence this appeal.

(2.) IT has been argued by Mr. Gill learned counsel for the accused that as the mandatory provisions of Section 50 of the Act had not been complied with and no offer in terms thereof made to the accused before he was searched by Head Constable Sewa Dass, the conviction stood vitiated in the light of the judgement of the Supreme Court in State of Punjab v. Balbir Singh, 1994 (1) RCR 737 and Mohinder Kumar v. State of Goa, 1995 (2) RCR 599. In both the judgements it has been held that if an offer was not made to an accused in terms of Section 50 of the Act and this mandatory provision ignored, this was a sufficient ground for recording an acquittal in favour of the accused. In the second cite a case the Supreme Court even went further and observed that the provisions of Section 50 of the Act, were required to be complied with even in a situation where the accused was apprehended on account of his suspicious conduct although the meeting between him and the police was a chance encounter. In the case in hand, the accused on seeing the police party and changed his direction and it was this action which had raised a suspicion in the mind of the police party. It was, therefore, imperative in the light of the aforecited judgements for the police to have made an offer to the accused in terms of Section 50 of the Act. Admittedly this has not been done. In the light of what has been held above the present appeal is allowed, the judgement of the trial Court set aside, and the accused acquitted of the charges levelled against him.