GURBAX SINGHversusSTATE OF HARYANA

A                                 GURBAX SINGH
                                           v.
                               STATEOFHARYANA

                                FEBRUARY 6, 2001

B              [M.B. SHAH AND K.G. BALAKRISHANAN, JJ.]
                                                                                       ~--
          Narcotic Drugs and Psychotropic Substances Act, 1985:

          Sections 52, 55 and 57-Prescribed procedure under-Non-compliance
C with-Effect on conviction-Accused found carrying poppy straw in a bag-
    Sample was taken and seal affixed in the presence of a witness-Sea/ remained
    with witness for I 0 days-Witness stated that seal was made of wood whereas        ""'It.,
    the /. 0. stated that it was made of brass-Procedure prescribed under Ss. 52,
    55 and 57 not followed-Trial court convicted accused under Section 15-
D   High Court affirmed the conviction-Correctness of-Held : Sections. 52, 55
    and 57 are director;~Violation of these provisions would not ipso facto
    violate trial or conviction-However, such provisions cannot be totally
    ignored-But the investigation is faulty-On the basis of such faulty
    investigation, it is not safe to convict the accused-Conviction of accused set      ). -
    aside.
E         Section 50--Applicability of-Accused found carrying poppy straw in
    a bag-Accused was not informed of his right to be searched in the presence
    of a Gazetted Officer or Magistrate-Held: Poppy straw is recovered from a
    bag belonging to the accused and not from his person--Therefore, it is not
    necessary to make the search in presence of a Gaze/led Officer or a                "'J-
F   Magistrate--Section 50 is applicable only in those cases where search of the
    person is carried out.
          The appellant-accused was found carrying poppy straw in a polythene
    bag. A sample was taken and a seal was affixed in the presence ofa witness.
    The seal remained with the witness for I 0 days. The witness stated that the
G   seal was made of wood while the Investigating Officer stated that it was made
    of brass. The trial court convicted the accused under Section 15 of the Narcotic
    Drugs and Psychotropic Substances Act, 1985. The High Court confirmed
    the conviction. Hence this appeal.

          On behalf of the appellant it was contended that the procedure
H prescribed under Section 50 of the NDPS Act of informing the accused
                                          882
       •
                          GURABAX SINGH v. STATE OF HARV ANA                       883
           whether sea_rch should be carried out in the presence of a Gazetted Officer A
           or a Magistrate; and that the procedure prescribed under Sections 52, SS
           and S7 was not followed.

                 On behalf of the respondent it was contended that that there was no
           question of following procedure prescribed under Section 50 because from
           the person of the accused, nothing was recovered, but from the polythene bag, B
           which he was holding, poppy straw was recovered.
-'>-
                Allowing the appeal, the Court

                 HELD: I. Poppy straw was found from the bag belonging to the appellant
           and not from his person and, therefore, it was not necessary to make an offer C
                                        a
           for search in the presence of Gazetted Officer or a Magistrate. Section SO
           of the Narcotic Drugs and psychotropic Substances Act, 1985 would be
           applicable only in those ca_ses where the search of the person is carried out.
                                                                         1886-D; 887-C)

                Kalema Tuma v. State of Maharashtra, 11999) 8 SCC 463 and State ofD
           Punjab v. Baldev Singh, [1999) 6 SCC 172, relied on.

                State of Punjab v. Jasbir Singh, [1996) I SCC 288, referred to.
-x               2. May be that the 1.0. had no knowledge about the operation of the
           NDPS Act on the date of the incident as he had recorded the FIR under E
           Section 9/ln8 of the Opium Act. 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, 1.0. cannot totally ignore these provisions
           and such failure will have a bearing on appreciation of evidence regarding
           arrest of th.i accused or seizure of the article. In the present case, 1.0. has
           admitted that the seal, which was affixed on the article seized, was handed F
           over to the witness and was kept with him for I 0 days. He has also admitted
           that the parcels were not sealed by the officer-in-charge of the police station
           as required under Section 5S of the NDPS 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 G
           Chemical Analyser. Further, it is apparent that the 1.0. has not followed the
           procedure prescribed under Section 57 of the NDPS Act of making full
           report of all particulars of arrest and seizure to his immediate superior
           officer. The conduct of the witness is unusual as he offered himself to be a
           witness for search and seizure despite being not asked by the 1.0. particularly
           when he did not know that the substance was poppy husk, but came to know H
    884                     SUPREME COURT REPORTS                    [200 I) I S.C.R.

A   about it only after being informed by the police. Further, it is the say of the
    witness that the seal used by the police inspector was a wooden seal. As
    against this it is the say of the 1.0. that it was a brass seal. On the basis of
    the aforesaid evidence and faulty investigation by the prosecution it would not
    be safe to convict the appellant for a serious offence of possessing poppy
B   husk. (887-D-H; 888-A-B)

          CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 35
    of2000

          From the Judgment and Order dated 8.12.95 of the Punjab and Haryana
C High Court in Crl. A. No. 449-SB of 1986.
          R.S. Malha, Mrs. Kanwaljit Kochhar, Sona! Mahajan, Vinod Kumar and
    J.D. Jain for the Appellant.                                                        -. -

          S.R. Sharma and Mahavir Singh for the Respondent.

D         The Judgment of the Court was delivered by

          SHAH, 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
E   Sessions Judge, Kamal 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 I 0 years and a fine of Rs.
    One lac, in default of payment of fine further rigorous imprisonment for 3
    years, the appellant has preferred this appeal.
F
          The accused was charged under Section 15 of the N.D.P.S. Act. For
    proving the same, prosecution has examined P.W.2. lshwar Singh, SI who on
    12th January 1986 at about 5.25 p.m. was present on platform No. I of Railway
    Station, Kamal for checking smuggling and other anti-social elements. At
G   about 5.25 p.m. Kalka passenger train arrived at Kamal 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
H   straw weighing 7 k.g. in a polythene bag of white colour. After separating 100
         GURABAX SINGH v. STATE OF HARYANA, [SHAH,J.]                         885
gms by way of sample, sample and the residue were separately sealed in two A
separat~ parcels in presence of witness. The seal which was affixed on parcels
was handed over to the witness (PWI) Harbans Lal. He has stated that the
case prope11y 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. I. At that time, Harbans Lal was B
present at the railway station to see off his relatives. He offered himself to
become witness to 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 l.S. on the gunny
bag and also on the sample. He adniitt~d that seal of the police station is C
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 ofinfonnation 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 D
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. I Harbans Lal, a panch witness. It
is his say that on the date of incident he was at the railway station to see E
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 I 00 grams. The recovery memo was prepared in his F
presence which he had attested. Jn 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 I 0 days. He has also admitted
that he had appeared as a prosecution witness in one excise case and that G
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.

      L.earned counsel for the appellant s'.1bmitted that the Investigating Officer   H
    886                      SUPREME COURT REPORTS                    (2001) I S.C.R.

A 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
B   was recovered. For this purpose reliance is placed on the decisions of this
    Court in Kalema Tumba 1-. State of Mahrashtra, [ 1999] 8 SCC 463 and Stale          -~.
    of Punjab v. Ba/dev Singh, [1999] 6 SCC 172.

           In Kalema Tumba (supra) this Court considered the mandatory
C   requirement of Section 50 ofNDPS Act and held that only when 'the person'
    of an accused is to be searched then he is required to be inforn1ed 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] I SCC 288 wherein it was held that though poppy husk was recovered
D   from the bags of the accused, he was required to be informed about his right
    to be searched in presence ofa 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
                                                                                        x---.
E   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
F           premises etc.

           Further after considering various decisions the Court held (in para 57)
    that when an empowered officer or a duly authorised c fticer acting on prior
    information is about to "search a person", it is imperative for him to inform
G   the person concerned of his right under sub-section (I) 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
H   mention that this right is extension of right conferred under Section I 00 (3)
         GURABAX SINGH v. STATE OF HARYANA, [SHAH, J.]                   887

of the Criminal Procedure Code. Sub-Section ( 1) of Section I 00 of the Code A
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 B
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 I 00 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 C
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 tho.se cases where the search of the person is carried out.

       The learned counsel for the appellant next contended that from the D
evidence it is apparent that the I. 0. has not followed the procedure prescribed
under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the 1.0. 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 E
of Sections 52 and 57 are directory. Violation of these provisions would not
ipso facto violate the trial or conviction. However, 1.0. 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, 1.0. has admitted that the seal which was affixed on the muddamal
article was handed over to the witness P.W.I and was kept with him for IO F
days. He has also admitted that the muddamal parcels were not se!IJed by the
officer in charge of the I 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 G
apparent that the 1.0. 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 1.0., particulany when he did not know that the
substance was poppy husk., but came to know about it only after being H
    888                    SUPREME COURT REPORTS                    [2001] 1 S.C.R.

A 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 o( possessing
    poppy-husk.
B
            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.
c V.S.S.                                                          Appeal allowed.




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