of Punjab Vs. Balwant Rai  Insc 141 (24 February 2005)
Singh & Arun Kumar B.P. Singh,J.
respondent herein was put up for trial before the Additional Sessions Judge, Sangrur
who by judgment and order dated August 8, 1997 found the respondent guilty of
the offence under Section 15 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (for short N.D.P.S. Act) and sentenced him to undergo rigorous
imprisonment for ten years and a fine of Rs.one lakh, in default of payment of
fine to undergo rigorous imprisonment for 2-1/2 (two and a half) years. The
respondent preferred an appeal before the High Court of Punjab & Haryana at
Chandigarh being Criminal Appeal
No.655-SB/1997. The High Court by its impugned judgment and order of 19th February, 1999 allowed the appeal and set aside
the order of conviction and sentence passed against the respondent. The State
of Punjab has come up in appeal before this
Court by special leave.
facts of the case are that ASI Sampuran Singh (PW3) along with ASI Surinder
Paul Singh (PW1) and Head Constable Satnam Singh, Constable Harinder Singh and
other police officials was on patrol duty. While they were at village Ahankheri,
Sampuran Singh PW3 received a secret information that the respondent was
selling poppyhusk in wholesale and that on the preceding night in village Farid
Pur Kalan several bags of poppyhusk had been unloaded and the accused was
waiting for customers. On receipt of such information, a wireless message was
sent to Pritpal Singh, Superintendent of Police, Malerkotla (PW2) who was
requested to reach the spot. Chowkidar of village Ahankheri joined the police
party and the police party reached the place indicated in the secret
information. The respondent was found sitting on bags numbering 15. In the
meantime, the Superintendent of police also reached there. In his presence PW3
opened the bags and found the bag to contain poppyhusk. There were 15 such
bags. The contents of the bags were mixed up and two samples each weighing 500 gms.were
taken. The remaining poppyhusk was packed in the same bags each containing 37 kgs.
of poppyhusk. The samples were duly sealed and after necessary formalities and
requirements of law were complied with a personal search of the respondent was
conducted and from the person of the respondent a sum of Rs.200/- was
recovered, which was taken into possession under recovery memo Ex.PB. The
sample was sent to the chemical examiner, Chandigarh and on receipt of his report Exh.PH, the respondent was put up for
trial. The prosecution sought to prove its case by adducing oral as well as
documentary evidence. ASI Surinder Pal Singh member of the raiding party was
examined as PW1 while Shri Pritpal Singh, Superintendent of Police was examined
as PW2. The investigating officer ASI Sampuran Singh was examined as PW3. The
report of the chemical examiner was produced before the court marked Exh.PH.
incriminating circumstances were put to the accused in his examination under
Section 313 of the Code of Criminal Procedure. There was a general denial by
the respondent of all the incriminating circumstances put to him but in answer
to the last question, the respondent stated that the police party was inimical
towards him and he had, therefore, been falsely implicated. According to him in
the year 1987 he had advanced a sum of Rs.18,000/- to Dhan Singh and Hakam
Singh. The said Dhan Singh and Hakam Singh refused to repay the amount on
demand. In the year 1990 ASI Amar Singh, ASI Sampuran Singh,PW3 and
sub-inspector Shamsher Singh brought him (the respondent) to the police station
Dhuri and falsely implicated him in a case. A relative of the respondent filed
a writ petition in the High Court and a Warrant Officer was appointed by the
High Court. His report disclosed that the respondent along with Roop Singh and Sajjan
Singh had been illegally detained in the police station Dhuri. Ultimately, the
High Court imposed a fine of Rs.5000/- upon sub-inspector Shamsher Singh for
the illegal detention of the respondent and others. On account of this police
officials were inimical towards him and, therefore, sub-inspector Shamsher
Singh got him falsely implicated in this case.
trial court accepting the evidence of the prosecution witnesses, and rejecting
the defence pleaded by the respondent, found the respondent guilty and
sentenced him as earlier noticed.
appeal before the High Court, it was argued that the conviction of the
respondent was bad in law for non-compliance with the provisions of Section 50
of the N.D.P.S Act. The High Court upheld this contention. The reasoning of the
High Court in this regard is that since the police had specific information
that the respondent was indulging in the trade of poppyhusk, Section 50 stood
attracted. Even though the Superintendent of police was associated with the
search, neither he nor the investigating officer gave the option to the
respondent to be searched in the presence of a gazetted officer or magistrate.
Referring to several judgments of the High Court, the learned judge came to the
conclusion that in view of the fact that the search was made pursuant to secret
information received by the investigating officer, Section 42 read with Section
50 obliged the prosecution to give an option to the respondent to be searched
before a magistrate or a gazetted officer. Since that was not done, the
mandatory provisions of Section 50 of the N.D.P.S Act were breached and the
respondent was entitled to an acquittal. The High Court held that the use of
the word "person" in Section 50 has to be given its widest import
otherwise the provision will be rendered nugatory. As an illustration the High
Court observed that if a person was found carrying a bag in his hand containing
narcotic substance, before the bag is searched, the requirements of Section 50
had to be fulfilled. It went to the extent of holding that Section 50 would
apply even in a case where a search is conducted in the house of the accused.
this view of the matter, the High Court allowed the appeal and set aside the
order of conviction and sentence against the respondent.
before us it was argued on behalf of the respondent that the search conducted
by the raiding party in the instant case was a personal search of the
respondent and, therefore, the provisions of Section 50 of the Act are attracted.
We are not persuaded to accept the submission. It has been brought to our
notice that recently this Court on a difference of opinion has referred to a
larger Bench the question as to whether search of the bag carried by the
accused on his shoulder attracts Section 50 of the Act, and whether failure to
give to the accused the necessary option contemplated by Section 50 before
searching his bag would be in violation of the provisions of Section 50. [2004)
7 SCC 735] Some earlier judgments of this Court do take the view that search of
a person does not extend to search of a vehicle, container, bag or premises.
Since the matter has been referred to a larger Bench, we need not express any
opinion on that question. The facts of this case are entirely different. We are
not concerned with a case of the nature referred to a larger Bench of this
Court. In the instant case 15 bags of poppyhusk were found by the side of the
road, and the petitioner was found sitting on them. On search of the
respondent, nothing incriminating was found and only a sum of Rs.200/- was
recovered, but on search of the bags it was found to contain poppyhusk. The
question is whether in the facts and circumstance of this case, search of the
bags would amount to search of the person of the respondent. In our view this
is clearly not a case of personal search and, therefore, requirements of
Section 50 will not be attracted. The High Court was clearly in error in
holding that the provisions of Section 50 of the N.D.P.S Act apply to a case
with such facts.
amicus curiae appearing on behalf of the respondent sought to sustain the order
of acquittal by reference to other evidence on record. He submitted that the
police was inimical towards the respondent and, therefore, the respondent was involved
in this case at the instance of sub-inspector Shamsher Singh. We have earlier
noticed the defence of the respondent. The earlier incident took place some
time in the year 1990, whereas the incident giving rise to the instant case
took place on 24th
September, 1994 i.e. about
four years later.
so far ASI Sampuran Singh (PW3) is concerned, we find that in the earlier
episode he was not the officer against whom the High Court had passed an order
imposing fine. It was sub-inspector Shamsher Singh against whom a fine was
imposed by the High Court for illegal detention of the respondent and some
others. It was submitted that since sub-inspector Shamsher Singh is on friendly
terms with ASI Sampuran Singh, PW3, therefore, he colluded with Shamsher Singh
and falsely implicated the respondent. We are not impressed by the argument.
The fact is that apart from these officers, the Superintendent of Police was
also associated with the search, though the respondent has gone to the extent
of denying his presence.
would be too much to suspect merely on the basis of such allegations that the
respondent was falsely implicated. Moreover, if such a plea of the respondent
were to be accepted, in no case can the respondent be prosecuted because if
prosecuted, his plea would be that the police was inimically disposed towards
him, and therefore, falsely implicated him.
have examined the evidence on record and from the facts of this case, it does
not appear to be a case of implanted evidence. The police had prior information
of the fact that poppyhusk contained in several bags had been unloaded at the
point where they were ultimately found. Intimation of this fact had been given
to the Superintendent of Police who reached the place where the bags were
unloaded. The respondent was found present there. The quantity is so large that
the question of implanting does not arise. No other explanation has been
offered by the respondent.
these facts and circumstance, we are of the view that the defence of the respondent,
that he was falsely implicated, cannot be accepted.
view of these findings, we allow this appeal, set aside the impugned judgment
and order of the High Court acquitting the respondent and find him guilty of
the offence punishable under Section 15 of the N.D.P.S. Act. We affirm the
order of conviction and sentence passed by the trial court on 8.8.97 in
Sessions Case No.7 of 20.1.1995 arising out of FIR No.102 dated 24.9.1994.
Court by its order dated 14th
July, 1999 had issued bailable
warrants. In case the respondent has been released on his furnishing bail
bonds, the same are cancelled and the State is directed to apprehend the
respondent forthwith. The respondent shall undergo the remainder of the
place on record our appreciation of the assistance rendered by Mr.Rana Ranjit
Singh, amicus curiae.