STATE OF PUNJABversusBALWANT RAI

A                             STATE OF PUNJAB
                                     v.
                                BALWANT RAI                           "I




                             FEBRUARY 24, 2005

B                    [B.P. SINGH AND ARUN KUMAR, JJ.]


          Narcotic Drugs and Psychotropic. Substances Act, 1985--Sections 15
    and 50-Accused prosecuted for possessing 15 bags of poppyhusk-Accused
C   found sitting on the bags-Search of bags by Police-Plea offalse implication
    by accused-Negatived-Conviction by Trial Court-Acquittal by High Court
    for non-compliance of Section 50-0n appeal, held: Convict.ion justifled-:-
    Section 50 not attracted·in the case, as search of bags ~ould no/ amount-to
    search of the person of.the accused-Also in the facts and circumstances of
    the case, false implication of accused not acceptable.
D
          PW-3 and PW-1, the police officials, were on patrol duty. PW-3 got
    a secret information that at a particular place poppyhusk was unloaded
    on previous night and the respondent-accused was waiting there for
    customers. The party and Superintendent of Police (PW-2) reached the
    place, where they found 15 bags on which respondent was sitting. On
                                                                                  -,
E   search of the bags poppyhusk was found while on his personal search
    nothing incriminating was found. Accused in his statement u/s. 313 Cr.P.C.
    stated that he was falsely implicated by the police as the police officials
    were inimical towards him as High Court had imposed fine on the friend
    of PW-3 and other police officials for illegal detention of the respondent
F   on a previous occasion. Trial Court found the respondent guilty of offence
    u/s. 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 and
    convicted and sentenced him accordingly. On appeal High Court held that
    his conviction was bad for non-compliance of Section 50 of the Act and
    hence acquitted him.

G         In appeal to this Court respondent-accused contended that the search
    in the case would amount to personal search attracting Section SO of the
    Act and that he was falsely implicated in the case.

          Allowing the appeal, the Court

H                                      408
                 STATE OF PUNJAB v. BALWANT RAI [SINGH, J.)                  409
           HELD: I. In the facts and circumstances of the case, the defence of A
     the respondent, that he was falsely implicated, cannot be accepted. From
     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 B
     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. (413-B-DI

           2. In the facts and circumstance of this case, search of the bags would . C
     not amount to search of the person of the respondent. This is clearly not
     a case of personal search, and, therefore, requirements of Section 50 of
     Narcotic Drugs and Psychotropic Substances Act, 1985 will not be
     attracted. The High Court was clearly in error in holding that the
     provisions of Section 50 of Act apply to a case with such facts. [412-D-El
                                                                                   D
          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1240
     of 1999.


-         From the Judgment and Order dated 19.2.99 of the Punjab and Haryana
     High Court at Chandigarh in Crl.A. No. 655-SB of 1997.
                                                                                    E
          R.K. Rathore, Addi. Advocate General for State, A.K. Sinha, S.
     Krishnaraj and Bimal Roy Jad for the Appellant.

           Rana Ranjit Singh (A.C) for the Respondent.

           The Judgment of the Court was delivered by                               F
           B.P. SINGH, J. The 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     G

--   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   H
    410                    SUPREME COURT REPORTS                   {2005] 2 S.C.R.

A of conviction and sentence passed against the respondent. Th~ State <!f Punjab
    has come up in appeal before this Court ~y special leave.

            The facts of the case are that ASI Sampuran Singh (PW3) along with
    ASI Surinder Paul Singh (PWl) and Head Constable Satnam s'ingh, Constable
    Harinder Singh and other police officials was on' patro.I duty. While .they
B   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 ~ustomers. On receipt of such
    information, a wireless message was sent to Pritpal Singh, Superintendent of
C   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 pofice 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
D   mixed up and two samples each weighing 500 gms. were taken. The remaining
    poppy husk was packed in the same bags each containing 37 kgs. of poppyhusk.
    The samples were duly sealed and after necessary formalities and requirements
    oflaw 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,
E   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 b'y adducing oral as well as documentary evidence. ASI Surinder Pal
    Singh member of the raiding party was .examined as PWl while Shri Pritpal
    Singh, Superintendent of Police was examined as PW2. The investigating
F   officer ASI Sampuran Singh was examined as PW3 ..The report of the chemical
    examiner was produced before the court marked Exh.PH.

          The 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
G   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 Ohan Singh and Hakam Singh. The said .Ohan Singh and Hakam
    Singh refused to repay the amount on demand. In the year 1990 ASI Amar
H   Singh, ASI Sampuran Singh, PW3,and sub-inspector Shamsher Singh brought
            ST ATE OF PUNJAB v. BAL \VANT RAI (SINGH. J.]                  411

him (the respondent) to the police station Dhuri and falsely implicated him       A
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      B
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.

       The trial court accepting the evidence of the prosecution witnesses, and
rejecting the defence pleaded by the respondent, found the respondent guilty      C
and sentenced him as earlier noticed.

       In 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 D
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 E
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 p
Court held that the use of the word "person" in Section 50 has to be given
its widest import otherwise the provision will be reiidered 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 G
the house of the accused. In this view of the matter, the High Court allowed
the appeal and set aside the order of conviction and sentence against the
respondent.

      Even before us it was argued on behalf of the respondent that the           H



                                                                                      l
    412                    SUPREME COURT REPORTS                    [2005) 2 S.C.R.

A   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 att1'acted. We are not persuaded to accept the submission. It has been
    prought 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
B 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
C 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. Ori search
    of the respondent, nothing· incriminating was found and only a sum of Rs.
    200 was recovered, but on search of the bags it ~as found to contain
D 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 c~early in error in holding that the provisions of Section 50 of the N.D.P.S
E Act apply to a case with such facts.
           Learned 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
F   Sharnsher 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. alfout
    four years later. Moreover, so far ASI Sampurari 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
G   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 Sharnsher Singh and falsely implicated the
    respondent. We are not impressed by the argument. The fact is that apart
H   from these officers, the Superintendent of Police was also associated with the
            STATE OF PUNJAB v. BAL WANT RAI [SINGH. J.]                     413
search, though the respondent has gone to the extent of denying his presence.       A
It 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 ciisposed
towards him, and therefore, falsely implicated him.
                                                                                    B
       We 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            C
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.

      Given these facts and circumstance, we are of the view that the defence
of the respondent, that he was falsely implicated, cannot be accepted.              D
      In 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         E
24.9.1994.

      This 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             F
sentence.

     We place on record our appreciation of the assistance rendered by Mr.
Rana Ranjit Singh, amicus curiae.

K.K.T.                                                         Appeal allowed.      G