State of Haryana Vs.
Mai Ram  INSC 1267 (31 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.211 OF 2001 State
of Haryana ...Appellant Mai Ram son of Mam Chand ...Respondent
DR. ARIJIT PASAYAT,
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 accused guilty of the offence punishable under Section 17 of the Act and
was sentenced to undergo imprisonment for 10 years
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 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.
regarding seizure of opium. After the investigation, the accused was challaned
by the Sub Inspector Ishwar Singh.
Trial Judge found that the prosecution established its case and accordingly
convicted and imposed sentence as aforesaid.
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
counsel for the appellant-State submitted that Section 50 has no application
because there was no question 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
Therefore, the High
Court's reasoning and conclusions are not sustainable.
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.
is submitted that after 20 years, and having already suffered some year of
custody, respondent should not be asked to surrender to custody.
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 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
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.
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.
far as the applicability of Section 50 is concerned, the High Court's view is
clearly indefensible. Section 50 reads as follows:
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."
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).
being the position, the finding regarding non- compliance of Section 50 of the
Act is also without any substance.
from any angle the judgment of the High Court is clearly indefensible and is
shall surrender to custody forthwith to serve the remainder of sentence.
(Dr. ARIJIT PASAYAT)
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