State Of Rajasthan vs Tara Singh

Crl.A. No. 262 of 2006 REPORTABLE

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IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 262 of 2006

STATE OF RAJASTHAN ..... APPELLANT

VERSUS

TARA SINGH ..... RESPONDENT

O R D E R

1. This appeal against acquittal filed by the State

of Rajasthan arises out of the following facts:

1.1 At about 5:00p.m. on the 2nd February, 1988 the

Station in charge of police station Sangdia received

information through an informer that one Tara Singh

would be coming near the Jhandewalan Sikhan river,

carrying opium. The necessary entries etc. were made in

the Police Station register and a raiding party was

organised by the Police Officer. As the raiding party

reached near Jhandewalan Sikhan at 6:00p.m. a person

carrying a white coloured bag was seen coming from the

Crl.A. No. 262 of 2006 REPORTABLE

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opposite side and on seeing the police party took a

sudden turn and started running away. He was chased and

apprehended and on enquiry revealed his name as Tara

Singh, the respondent herein. An offer of a search in

terms of Section 50 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter called

'the Act'), was, accordingly, made to him and he stated

that he would like to be searched in the presence of

the Station incharge himself. He was, accordingly,

searched and the bag that he was carrying was found to

contain 8 kg. of opium. Samples of the opium were taken

out and sent to the laboratory for analysis and the

balance was deposited in the Malkhana. On the

completion of the investigation, the respondent was

charged under Sections 8/15 of the Act and was brought

to trial. The trial court relying on the evidence of

several witnesses who had constituted the raiding party

as also the report of the laboratory, held that the case

against the respondent had been proved beyond doubt. He

was, accordingly, sentenced to 10 years R.I. and to a

fine of Rs. 1 lakh. An appeal was thereafter filed by

the respondent in the High Court. The High Court

allowed the appeal on two grounds: (i) that the

provisions of Section 50 of the Act had not been

complied with and the offer to the accused that he could

Crl.A. No. 262 of 2006 REPORTABLE

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be searched in the presence of a Gazetted Officer or

Magistrate had not made to him; and (ii) that there was

no evidence to show as to when the sample had been sent

to the laboratory, as the forwarding letter dated 26th

February, 1998, of the Superintendent of Police

(Exhibits P20 and P21) sent along with the samples did

not explain why the samples had reached the laboratory

on the 9th March, 1998 and it was not thus clear where

the samples had remained between the 26t February, 1998

and 9th March, 1998. The appeal was, accordingly,

allowed and the respondent was, acquitted,. It is in

these circumstances that the present appeal has been

preferred by the State.

2 At the very outset, it must be understood that the

provisions of Section 50 would no longer be applicable

to a search such as the one made in the present case as

the opium had been carried on the head in a gunny bag.

A Bench of this Court in State of Himachal Pradesh v.

Pawan Kumar (2005) 4 SCC 350 after examining the

discrepant views rendered in various judgments of this

Court has found that Section 50 of the Act would not

apply to any search or seizure where the article was not

being carried on the person of the accused. Admittedly,

in the present case, the opium was being carried on the

Crl.A. No. 262 of 2006 REPORTABLE

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head in a bag. Mr. Abhishek Gupta, the learned counsel

for the appellant-State, therefore, appears to be right

when he contends that the observations of the High

Court that the provisions of Section 50 of the Act would

not be applicable was no longer correct in view of the

judgment in Pawan Kumar's case. We find, however, that

the second aspect on which the High Court has opined

calls for no interference. As per the prosecution story

the samples had been removed from the Malkhana on the

26th of February, 1998, and should have been received in

the laboratory the very next day. The High Court has,

accordingly observed that the prosectuion had not been

able to show as to in whose possession the samples had

remained from 26th February, 1998 to 9th March, 1998. The

High Court has also disbelieved the evidence of P.W. 6

and P.W.9, the former being the Malkhana incharge and

the latter being the Constable, who had taken the

samples to the Laboratory to the effect that the samples

had been taken out on the 9th of March, 1998 and not on

the 26th February, 1998. The Court has also found that

in the absence of any reliable evidence with regard to

the authenticity of the letter dated 26th February, 1998

it had to be found that the samples had remained in some

unknown custody from the 26th February, 1998 to 9th March,

1998. We must emphasise that in a prosecution relating

Crl.A. No. 262 of 2006 REPORTABLE

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to the Act the question as to how and where the samples

had been stored or as to when they had despatched or

received in the laboratory is a matter of great

importance on account of the huge penalty involved in

these matters. The High Court was, therefore, in our

view, fully justified in holding that the sanctity of

the samples had been compromised which cast a doubt on

the prosecution story. We, accordingly, feel that the

judgment of the High Court on the second aspect calls

for no interference. The appeal is, accordingly,

dismissed. The respondent is on bail. His bail bonds

stand discharged.

..............................J [HARJIT SINGH BEDI]

..............................J [CHANDRAMAULI KR. PRASAD]

NEW DELHI MARCH 29, 2011.