Criminal Appeal No.1412-SB of 2004 v. State of Punjab

The Trial Court after scrutinizing the evidence held that the prosecution was able to prove its case against the accused beyond reasonable doubt and that five bags, each containing 30 Kgs of poppy husk were recovered from the accused. The trial Court convicted and sentenced the accused-appellant, as mentioned above. I have heard the learned counsel for the parties and have gone through the records of the case. The facts of this case, as mentioned above, disclose that there is no doubt about the fact that the accused- appellant was in conscious possession of the quantity of poppy husk recovered from his possession. Learned counsel for the appellant argued that the case of the prosecution is based only on the statements of the official witnesses and the only independent person, namely, Mohinder Singh was not examined by the prosecution. -5- Criminal Appeal No.1412-SB of 2004. According to the learned counsel, the police witnesses being interested in the success of the case, their statements should not be trusted without corroboration from an independent source. It has been submitted that non-examination of the independent witness, namely, Mohinder Singh , has upset the balance of the prosecution case, making the alleged recovery doubtful. After giving a careful thought to the argument raised by the learned counsel, I do not find any force therein in the presence of cogent and trustworthy evidence put forth by the prosecution. It is a matter of common knowledge that the independent witnesses, normally, do not support the prosecution case as they reside in the same area where the accused-persons reside and they fear to create ill-will and enmity with criminals. In this case, the official witnesses have fully supported the prosecution case and no material contradiction, worth the name, has been pointed out in their statements. The recovery in this case was made per chance. Merely the fact that the independent witness Mohinder Singh was not examined in this case, is not a sufficient ground to discard the testimonies of the official witnesses. It is well-settled that the prosecution story cannot be discarded on the ground that independent witness has not been examined. To cap it all, the fact of recovery of five bags of poppy husk, each containing 30 kilograms of poppy husk, from the accused, which cannot be planted by the police, weighs with the argument raised by -6- Criminal Appeal No.1412-SB of 2004. the learned counsel with regard to the non-examination of any independent witness. It has also been argued by the learned counsel for the appellant that in this case Deputy Superintendent of Police Satvir Singh, in whose supervision the recovery was allegedly effected has not been examined by the prosecution and it makes the case of the prosecution doubtful. He further argued that non- examination of Deputy Superintendent of Police Satvir Singh, shows that the mandatory provisions of Section 50 of the Act were not complied with in this case at the time of recovery of contraband from the accused-appellant and it renders the prosecution version doubtful. In order to appreciate the argument of the learned counsel, a reference to the relevant provisions of Section 50 of the Act is necessary, which are as under:- “

50. Conditions under which search of persons shall be conducted. - (1)When any officer duly authorized under Section 42 is about to search any person under the provisions of Section 41, Sector 42 or Section 43, he shall, if such person so requires, take such person without -7- Criminal Appeal No.1412-SB of 2004. 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 Magistrate before whom any such person is brought shall, if he sees no reasonable ground search, forthwith discharge the person but otherwise shall direct that search be made. (4) xx (5) xx (6) xx -8- Criminal Appeal No.1412-SB of 2004. (7) xx xx” A perusal of the above provisions of Section 50 (1) of the Act reveals that incorporation of the words “when any officer duly authorized under Section 42 is about to search any person” therein depicts that only when personal search of any person is required to be made, the Police Officer concerned is required to apprise him of his right existing under this Section i.e as to whether he wanted to be searched before a Gazetted Officer or before a Magistrate. Such a requirement is not there when the Police Officer concerned is going to search houses, building etc. Such a view was taken by a Full Bench of this Court in the case of State of Punjab v. Kulwant Singh, 1994 (1) Recent CR 303 wherein in para 46 at page 317, it was observed as under:- “ xx. The provisions of sub- sections (1), (2) and (3) of Section 50 were enacted by the Legislature in its wisdom only qua the personal search of a person and not regarding the search of houses, building etc. obviously to preserve the human dignity. There is logic behind enacting the special provisions regarding the personal search, because a person can carry -9- Criminal Appeal No.1412-SB of 2004. only a small quantity of contraband narcotic drug or psychotropic substance. Thus, in order to rule out the possibility of planting small quantity of such drugs at the instance of unscrupulous officers of the enforcing agency and to eliminate the chances of exploitation, the above-referred substantive right has been conferred upon the suspected person. A conjunct reading of the provisions of Section 50 of the Act leaves no doubt that the Legislature did not intend to confer a distinct right upon the suspect to claim personal search before a Magistrate or Gazetted Officer and prove his innocence in recognition of the right to human dignity and free from exploitation flowing from Article 21 of the Constitution. “ There was, thus, no violation of the mandatory provisions of Section 50 of the Act, as argued by learned counsel for the accused-appellant. In this view of the matter, as the recovery of five bags of poppy husk in this case, obviously, was not to be effected as a result of personal search of the accused, it is of no consequence whether the search of the bags kept in the Maruti Car was made before a Gazetted Officer or before a Magistrate or not. Non-examination of Deputy Superintendent of -10- Criminal Appeal No.1412-SB of 2004. Police Satvir Singh, under the circumstances, does not in any way affect the truthfulness of the prosecution version. Consequently, I do not find any merit in this appeal and dismiss the same. April 08, 2010. ( MOHINDER PAL ) JUDGE