R.L. Anand, J.@mdashThis is a criminal appeal and has been directed against the judgment and order dated 19th May, 1995 passed by the learned Additional Sessions Judge, Hisar, who convicted the Appellant u/s 15 of the tyarcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act'') and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1,00,000 or in default of payment of fine, he was ordered to undergo further rigorous imprisonment for one year.
2. The brief facts of the case can be described in the following manner:
Shri Ronki Ram, S.I., then, S.H.O. of Police Station, Adampur, received a secret information against the accused on 10th April, 1994, to the effect that the Appellant was in possession of poppy husk. Resultantly, the Investigating Officer prepared a raiding party headed by him and comprising of Ram Niwas, A.S.I., and Ors. "police officials. The F.I.R., copy of which is Ex. PG, was recorded in the Police Station and then the police party proceeded in an official jeep to the bus stop of Nllage Kohli. From there, Prabhu P.W. was joined in the raiding party and they reached the bridge of a minor canal near Adampur in the area of village Kohli. Accused Bhup Singh was found present near the cattle Ghat with four bags. He was sitting on one of those bags and it was suspected that some contraband substance was contained in the bags. Offer was made to the accused that his search was to be conducted and if he so wanted, he could be taken before a Magistrate or a Gazetted Officer. The accused expressed that he was ready to give search in the presence of a Gazetted Officer. First of all, the Investigating Officer went to the Tehsil Office, Adampur, which was closed. Thereafter the accused, the bags and the witness were taken to the house of Shri Prem Chand.-Naib Tehsildar-cum-Executive Magistrate. Application (Ex. PC) was made before the Executive Magistrate and the search regarding the contents of the bags was conducted in his presence. Poppy husk was found in the bags. Sample of 200 grams of poppy husk was separated from each of the four bags and made into separate sealed parcels by using the seal of Shri Prem Chand, bearing inscription PC . The residue, in each of the four bags weighed 39 kgs. 800 grams. The entire case property was taken into possession vide recovery memo. (Ex. PD). The accused could not produce any licence or permit for keeping in possession the poppy husk. The Thanedar also prepared rough site plan for the place of recovery and recorded the statements of the witnesses. Thereafter, the Thanedar returned to the Police Station and handed over the case property with seals intact to the M.H.C. for safe custody. Ultimately, the sample of the contraband was sent to the office of the Chemical Examiner, who found the same to be poppy husk vide report (Ex. PL.).
3. The Appellant was challaned u/s 15 of the Act in the Court of the Illaqa Magistrate, who supplied copies of the documents to the accused and committed the Appellant to the Court of Session in order to face trial. Vide order dated 18th October. 1994 the Appellant was charge-sheeted on the allegation that on 10th April, 1994 in the area of village Kohli he kept in his conscious possession four bags containing 160 kgs. of poppy straw without any permit and thereby committed an offence punishable u/s 15 of the Act.
4. In order to prove the charge, the prosecution examined P.W. 1 Constable Lakshmi Narain, who tendered in evi4ence affidavit (Ex. PA) ; P.W. 2 Head Constable Vijay Singh, who gave his statement vide affidavit (Ex. PB) ; P.W. 3 Prem Chand, Naib Tehsildar-cum-Executive Magistrate. Pilu Khera ; P.W. 4 A.S.I. Ram Niwas ; and the Investigating Officer Ronki Ram, who appeared as P.W. 5. Prabhu P.W. was given up by the prosecution as having been won over by the accused.
5. On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313 of the Code of Criminal Procedure and all the incriminating circumstances appearing in the prosecution case were put to him, to which he denied and he stated that it was a false case. The Head Constable of the Police had altercation with him. He brought him to the Police Station and got him involved in the present case. In defence the accused did not lead any evidence.
6. Learned Additional Sessions Judge. Hisar vide judgment and order dated 19th May, 1995, convicted and sentenced the Appellant in the manner stated above and aggrieved by his conviction and sentence, present appeal has been filed.
7. I have Shri K.D.S. Hooda. Advocate, appearing on behalf of the Appellant, and Shri Shailender Singh, D.A.G., Haryana, and with their assistance have gone through the record of this case.
8. Learned Counsel for the Appellant has rightly submitted that the provisions of Section 50 of the Act have not been complied with in a proper manner, rather the said provisions have been complied with in a manner which is not permissible according to law. In support of his contention, learned Counsel for the Appellant submitted that the Appellant expressed the desire that he or the bags may be searched in the presence of a Gazetted Officer. The contention of the learned Counsel for the Appellant is also borne out from the consent memo. (Ex. PE) in which there is a clear averment on the part of the Appellant that he wanted the search in the presence of a Gazetted Officer. In the present case what the Police has done after the offer of the accused is that the accused and the case property were first taken to the office of the Tehsildar. Adampur, as the Investigating Officer wanted to produce the Appellant before the Tehsildar. Unfortunately, the office of the Tehsildar was closed and for that reason, the Appellant could not be produced before him along with the case property. Resultanjly, the Investigating Officer then took the Appellant to the house of the Naib Tehsildar, who had the powers of Executive Magistrate.
9. Learned D.A.G., appearing on behalf of the State of Haryana, submitted, that the search in this case has been taken up in the presence of Executive Magistrate and in these circumstances the search may be treated as valid.
10. I do not subscribe to the argument raised by the learned D.A.G., appearing on behalf of the State, because in this case the Appellant exercised his right to be searched in the presence of a Gazetted Officer. Section 50 of the Act has given alternative option to the person to be searched, either he can claim to be searched in the presence of a Gazetted Officer or in the presence of a Magistrate. The Appellant has already exercised his option that search of the bags should be conducted in the presence of a Gazetted Officer. In these circumstances it was obligatory on the part of the Investigating Officer to take the Appellant before the Gazetted Officer.
11. Now it is to be seen whether Shri Prem Chand, Naib Tehsildar-cum-Executive Magistrate was a Gazetted Officer. The safer answer to this query is in the negative for reason -that this witness Shri Prem Chand was specifically cross-examined by the counsel who gave representation on behalf of the Appellant before the trial court. It has been specifically admitted by Shri Prem Chand "I am non-Gazetted Officer". In these circumstances, the search of the bags taken in the presence of Shri Prem Chand, who was not. a Gazetted Officer, cannot be held to be valid, though he might be having the powers of Executive Magistrate. The position would have been different if the Appellant had exercised the option to the effect that the search should be taken in the presence of an Executive Magistrate. In view of the specific option given by the Appellant that he wanted the search of the bags in the presence of a Gazetted Officer, the Investigating Officer could not adopt any Ors. method or mode of search than the one expressed by the Appellant. In this manner it can be safely said that the provisions of Section 50 of the Act have not been complied with, rendering the search and recovery as illegal. This aspect of the case has not been rightly appreciated by the learned trial court.
12. Resultantly, I allow this appeal, set aside the judgment and order passed by the trial court and acquit the Appellant of the charge framed against him. The case property stands confiscated to the State.
13. Let intimation about the acceptance of this appeal be sent to the Superintendent, Central Jail, Hisar, so that the Appellant may be released forthwith, if not required or convicted in any Ors. case.
14. The appeal is allowed.
