State Of Haryana vs Mai Ram

1. Challenge in this appeal is to the judgment of the learned

Single Judge of the Punjab and Haryana High Court, directing

acquittal of the respondent (hereinafter referred to as the

`accused'). The respondent was found guilty of offence

punishable under Section 17 of the Narcotic Drugs

Psychotropic Substance Act, 1985 (in short `NDPS Act') by

learned Additional Sessions Judge III, Hissar. He found the

1 accused guilty of the offence punishable under Section 17 of

the Act and was sentenced to undergo imprisonment for 10

years

2. Background facts giving rise to the trial are as follows:

On 3.1.1988, Ishwar Singh, Sub Inspector along with ASI

Ram Kishan and 3 Constables was present at platform No.3

near Railway bridge. At about 8.30 p.m. one train came from

the side of Sadalpur, Chandgi Ram PW was also with the

police party at that time. Accused Mai Ram alighted from that

train and started walking towards the engine. He was

carrying one bag (Ex.P1) in his right hand. On suspicion, he

was stopped. First of all, the Sub Inspector served him with a

notice Ex. PA and told him that he (S.I.) suspected that he

(accused) was carrying some contraband article like opium

and Ganja etc. and if he (accused) wanted he could be

searched before the Magistrate or the Gazetted Officer. But the

accused gave in writing that he (S.I.) could search him himself

and the accused also made an endorsement Ex.PA/1 to this

2 effect. Then the Sub Inspector gave his search to the accused

and there after searched bag (Ex.P1) carried by the accused

which contained 1-1/2 kgs. of opium, without any licence or

permit. The S.I. took 25 grams of opium as a sample out of

the recovered opium and put the remaining opium in tin box

(Ex.P.2). He then sealed the sample and tin-box (Ex.P2) with

the seal of IS and the seal after use was given to Chandi Ram

PW. The articles were taken into possession vide memo Ex.P.3

attested by the PWs. Thereafter, the personal search of the

accused was effected and a ticket Ex.P3 and a cash amount of

Rs.45/- were also recovered from his possession which were

taken into possession vide the recovery memo Ex.PC attested

by the PWs and thumb marked by the accused. The accused

was arrested after telling him the grounds of arrest. Ruea

Ex.PD was sent to the Police Station on the basis of which

formal F.I.R/ Ex. PD/1 was recorded. Rough site plan Ex.PE

with correct marginal notes was prepared. Statement of

witnesses was recorded. After returning to the Police Station,

the case property was deposited with the MMC with the seals

intact. The S.I. also telephonically informed the Dy. S.P.

3 regarding seizure of opium. After the investigation, the

accused was challaned by the Sub Inspector Ishwar Singh.

3. Learned Trial Judge found that the prosecution

established its case and accordingly convicted and imposed

sentence as aforesaid.

4. An appeal was filed before the Punjab and Haryana High

Court. Learned Single Judge allowed the appeal holding that

there was violation of the provisions of Section 50 of the Act.

It was noted that elaborate reasons were not recorded about

the suspicion about the accused being in possession of opium.

It was also noted that the recovery was said to have been

effected at the railway station and many independent

witnesses would have been available. But only police officials

were examined as PWs.1 and 2. There was no evidence to

show that the seals were intact.

5. Learned counsel for the appellant-State submitted that

Section 50 has no application because there was no question

4 of personal search and the search was of bag which was

carried by the accused. Additionally, there was no

requirement in law to record the reasons for the suspicion.

Further, the accused was apprehended when he got down at

the railway station about 8.30 p.m. PWs 1 and 2 categorically

stated in their evidence that no other person was willing to be

a witness. Merely because the officials witnesses were

examined, that cannot be a ground to suspect the prosecution

version. There was not even a suggestion during the

examination of the witnesses that the seals were not intact.

Therefore, the High Court's reasoning and conclusions are not

sustainable.

6. Leaned counsel for the respondent-accused on the other

hand submitted that the respondent is presently about 70

years old. The quantity stated to have been recovered is about

1.5 kilos. Subsequently, there has been amendment and by

notification dated 2.10.2001 the commercial quantity is 2.5

kg.

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7. It is submitted that after 20 years, and having already

suffered some year of custody, respondent should not be

asked to surrender to custody.

8. The Trial Court record categorical finding that the

requisite procedure was followed and even if there was no

requirement for giving a notice in terms of Section 50 of the

Act as no personal search was made, requisite procedures

were followed. There is nothing in law that elaborate reasons

for entertaining a suspicion about an accused, carrying

contraband articles should be recorded. The High Court was

clearly in error in holding that the reason for the suspicion

was not recorded. So far as the examination of only official

witness is concerned, it is to be noted that the only

independent witness who was examined to speak about the

seizure did not support the prosecution version. No material

was brought on record by the defence to discredit the evidence

of the official witnesses. The ultimate question is whether the

evidence of the official witness suffers from any infirmity. In

6 the instant case nothing of the nature could be pointed out.

Further PWs 1 and 2 categorically stated that no other person

was willing to depose as witness. Therefore, the High Court

was clearly in error in holding that the prosecution version

became vulnerable for non-examination of persons who were

not official witnesses.

9. It is to be noted that Trial Court found that the seals

were intact as deposed by the official witnesses. The High

Court came to an abrupt conclusion that there was no

evidence to show that the seals were intact.

10. As rightly submitted by learned counsel for the State no

such question was raised and on the contrary the Trial Court

found that the evidence of official witnesses clearly establish

that the seals were intact.

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11. So far as the applicability of Section 50 is concerned, the

High Court's view is clearly indefensible. Section 50 reads as

follows:

"50. Conditions under which search of persons shall be conducted. -

(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).

(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female."

8 12. A bare reading of Section 50 shows that it only applies in

case of personal search of a person. It does not extend to

search of a vehicle or a container or a bag, or premises. [(See

Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8)

SC 293), State of Punjab v. Baldev Singh (1999 (6) SCC 172)

and Gurbax Singh v. State of Haryana (2001 (3) SCC 28)]. The

language of Section 50 is implicitly clear that the search has

to be in relation to a person as contrasted to search of

premises, vehicles or articles. This position was settled beyond

doubt by the Constitution Bench in Baldev Singh's case

(supra). A similar question was examined in Madan Lal and

Anr. v. State of Himachal Pradesh (2003 (6) Supreme 382).

13 Above being the position, the finding regarding non-

compliance of Section 50 of the Act is also without any

substance.

14. Looked from any angle the judgment of the High Court is

clearly indefensible and is set aside.

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15. Respondent shall surrender to custody forthwith to serve

the remainder of sentence.

..........................................J. (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi, July 31, 2008

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