http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4

CASE NO.:

Appeal (crl.) 35 of 2000

PETITIONER:

GURBAX SINGH

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 06/02/2001

BENCH:

M.B. Shah & K.G. Balakrishnan.

JUDGMENT:

Shah, J.

L...I...T.......T.......T.......T.......T.......T.......T..J

Aggrieved by the judgment and order dated 8th December,

1995 passed by the High Court of Punjab and Haryana in

Criminal Appeal No. 449-SB of 1986 confirming the judgment

and order passed by the Additional Sessions Judge, Karnal

dated 6.5.1986 convicting the appellant for the offence

punishable under Section 15 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to

as the N.D.P.S. Act) and sentencing him to suffer

rigorous imprisonment for 10 years and a fine of Rs.One lac,

in default of payment of fine further rigorous imprisonment

for 5 years, the appellant has preferred this appeal.

The accused was charged under Section 15 of the N.D.P.S.

Act. For proving the same, prosecution has examined P.W.2.

Ishwar Singh, SI who on 12th January 1986 at about 5.25 p.m.

was present on platform No. 1 of Railway Station, Karnal

for checking smuggling and other anti-social elements. At

about 5.25 p.m. Kalka passenger train arrived at Karnal

from the side of Panipat and halted at platform No. 1. It

is his say that when he was checking a second class

compartment, the appellant who was sitting in the

compartment became panicky and left the train from the door

towards the side of engine carrying a katta (gunny bag) on

his left shoulder. On suspicion, he was nabbed in presence

of witness and it was found that he was carrying poppy straw

weighing 7 k.g. in a polythene bag of white colour. After

separating 100 gms by way of sample, sample and the residue

were separately sealed in two separate parcels in presence

of witness. The seal which was affixed on parcels was

handed over to the witness (PW1) Harbans Lal. He has stated

that the case property was deposited with MHC on the same

day. He has also stated that on the personal search of the

accused, second class railway ticket was recovered. In

cross-examination, it is his say that he intercepted the

accused outside the compartment of platform No. 1. At that

time, Harbans Lal was present at the railway station to see

off his relatives. He offered himself to become witness to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4

the recovery. He has also deposed that seal used for

sealing the case property remained with Harbans Lal for ten

days. It is his say that he had fixed only one seal made of

brass bearing I.S. on the gunny bag and also on the sample.

He admitted that seal of the police station is different

from the seal of the Investigating Officer and he has not

affixed the seal of police station on the case property as

also on the sample at the time of delivery to M.H.C. He has

also admitted that he was not maintaining any record of

information sent to Circle Inspector of the Police

Headquarter, G.R.P. It is his say that he had

telephonically informed his superior officer about the

seizure and its quantity. He has denied the suggestion that

accused who was a rikshaw puller was falsely implicated in

the case. He has also denied the suggestion that accused

asked to be searched in presence of Magistrate or other

superior officer.

Prosecution has also examined P.W. 1 Harbans Lal, a

panch witness. It is his say that on the date of incident

he was at the railway station to see off his sister and

brother in law. At that time, he noticed the accused

alighting from the train on seeing the police. Therefore,

accused was nabbed by the police in his presence. The

police found that the accused was carrying poppy straw

placed in polythene bag which on weighment was found to be 7

k.g. The police took sample of 100 grams. The recovery

memo was prepared in his presence which he had attested. In

cross- examination, he has stated that before searching the

contents of gunny bag, the police had not offered itself for

search to the accused. It is his say that seal affixed on

the case property was made of wood (as against the say of

the Investigating Officer that it was a brass seal). The

seal was kept with him for 10 days. He has also admitted

that he had appeared as a prosecution witness in one excise

case and that he was having business of sale of tea near

Tonga Stand outside the railway station for the last 15

years. It is his say that he had not earlier seen the

ground poppy husk and the police had informed him that the

substance recovered from the accused was ground poppy husk.

Learned counsel for the appellant submitted that the

Investigating Officer has not followed the procedure

prescribed under Section 50 of the Act of informing the

accused whether search should be carried out in presence of

Gazetted Officer or Magistrate. As against this, learned

counsel for the respondent submitted that in the present

case, there is no question of following procedure under

Section 50 because from the person of the accused, nothing

was recovered, but from the gunny bag which he was holding,

poppy straw was recovered. For this purpose reliance is

placed on the decisions of this Court in Kalema Tumba v.

State of Mahrashtra [(1999) 8 SCC 463] and State of Punjab

v. Baldev Singh [(1999) 6 SCC 172].

In Kalema Tumba (supra) this Court considered the

mandatory requirement of Section 50 of NDPS Act and held

that only when the person of an accused is to be searched

then he is required to be informed about his right to be

examined in presence of a gazetted officer or a magistrate.

The Court further held that in view of the decision in the

case of Baldev Singh (supra) the decision rendered by this

Court in State of Punjab v. Jasbir Singh [(1996) 1 SCC 288]

wherein it was held that though poppy husk was recovered

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4

from the bags of the accused, he was required to be informed

about his right to be searched in presence of a gazetted

officer or a magistrate stood overruled. In facts of that

case the Court held that Heroine was found from the bags

belonging to the appellant and not from his person and

therefore it was not necessary to make an offer for search

in presence of a gazetted officer or a magistrate.

In the case of Baldev Singh (supra) the Constitutional

Bench (in para 12) observed thus: - On its plain reading,

Section 50 would come into play only in the case of a search

of a person as distinguished from search of any premises

etc.

Further after considering various decisions the Court

held (in para 57) that when an empowered officer or a duly

authorised officer acting on prior information is about to

search a person, it is imperative for him to inform the

person concerned of his right under sub-section (1) of

Section 50 of being taken to the nearest gazetted officer or

the nearest magistrate for making the search. However, such

information may not necessarily be in writing.

In view of the aforesaid decision of the Constitutional

Bench, in our view, no further discussion is required on

this aspect. However, we may mention that this right is

extension of right conferred under Section 100 (3) of the

Criminal Procedure Code. Sub-Section (1) of Section 100 of

the Code provides that whenever any place liable to search

or inspection is closed, any person residing in, or being in

charge of, such place, shall, on demand of the officer or

other person executing the warrant, and on production of the

warrant, allow him free ingress thereto, and afford all

reasonable facilities for a search therein. Sub-Section (3)

provides that where any person in or about such place is

reasonably suspected of concealing about his person any

article for which search should be made, such person may be

searched and if such person is a woman, the search shall be

made by another woman with strict regard to decency.

Sub-section (7) of Section 100 further provides that when

any person is searched under sub-section (3) a list of all

things taken possession of shall be prepared and a copy

thereof shall be delivered to such person. This would also

be clear if we refer to search and seizure, procedure

provided under Sections 42 and 43 of the building,

conveyance or place. Hence, in our view, Section 50 of the

N.D.P.S. Act would be applicable only in those cases where

the search of the person is carried out.

The learned counsel for the appellant next contended

that from the evidence it is apparent that the I. O. has

not followed the procedure prescribed under Sections 52, 55

and 57 of the N.D.P.S. Act. May be that the I.O. had no

knowledge about the operation of the N.D.P.S. Act on the

date of the incident as he recorded the FIR under Section

9/1/78 of the Opium Act. In our view, there is much

substance in this submission. It is true that provisions of

Sections 52 and 57 are directory. Violation of these

provisions would not ipso facto violate the trial or

conviction. However, I.O. cannot totally ignore these

provisions and such failure will have a bearing on

appreciation of evidence regarding arrest of the accused or

seizure of the article. In the present case, I.O. has

admitted that the seal which was affixed on the muddamal

article was handed over to the witness P.W.1 and was kept

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4

with him for 10 days. He has also admitted that the

muddamal parcels were not sealed by the officer in charge of

the police station as required under Section 55 of the

N.D.P.S. Act. The prosecution has not led any evidence

whether the Chemical Analyser received the sample with

proper intact seals. It creates a doubt whether the same

sample was sent to the Chemical Analyser. Further, it is

apparent that the I.O. has not followed the procedure

prescribed under Section 57 of the N.D.P.S. Act of making

full report of all particulars of arrest and seizure to his

immediate superior officer. The conduct of panch witness is

unusual as he offered himself to be a witness for search and

seizure despite being not asked by the I.O., particularly

when he did not know that the substance was poppy husk., but

came to know about it only after being informed by the

police. Further, it is the say of the Panch witness that

Muddamal seal used by the PSI was a wooden seal. As against

this, it is the say of PW2 SI/IO that it was a brass seal.

On the basis of the aforesaid evidence and faulty

investigation by the prosecution, in our view, it would not

be safe to convict the appellant for a serious offence of

possessing poppy-husk.

In the result, the appeal is allowed and the impugned

judgment and order passed by the High Court confirming the

conviction of the appellant is set aside. The appellant be

released forthwith, if he is not required in any other case.