S.D.BAJAJ,J - (1.) AROUND 12.50 P.M. on 1st January, 1986 accused appellant Baljinder Singh while in the area of old Octroi Post, Rajpura, district Patiala of Punjab State, was found to be in conscious physical possession of 4 kg. of opium contained in a bag which was being carried by the accused-appellant in his right hand at the relevant time. Vide its impugned judgment dated 15th Oct 1986 learned trial court convicted him of the commission of the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay rupees one lac as fine. In default of payment of fine the accused-appellant was ordered to undergo rigorous imprisonment for a further period of two years. Feeling aggrieved therefrom convicted accused Baljinder Singh has filed Criminal Appeal No. 786-SB of 1986 in this Court for assailing it.
(2.) I have heard Shri Vicas Singh, Advocate, for the appellant, Shri Sukhbir Singh, Advocate, for the State and have carefully gone through the relevant record. It is not disputed that the mandatory provisions of law obtaining in section 50 of the Act were not complied with. The only assertion is that the appellant did not take this plea earlier before the learned-trial court.
(3.) IN similar circumstances it has repeatedly been held in Hakam Singh v. Union Territory, Chandigarh, 1988(2) Chandigarh Law Reporter 75, Murli Dhar v. State of Haryana, 1990(1) Chandigarh Law Reporter 369 and Amrit Singh v. The State of Haryana, 1990(2) RCR(Crl.) 525 (P&H) : 1990(1) Chandigarh Law Reporter 437 :- "The provisions of section 50 of the Act are mandatory in terms and it also stands so settled by judicial precedents, one of which is provided by the judgment of this Court in Hakam Singh v. Union Territory, 1988(2) Recent CR 20 : 1998(2) Chandigarh LR 75. Reference may here also be made to the judgment of the Division Bench of the High Court of Himachal Pradesh in State of Himachal v. Sudarshan Kumar, 1989(2) Chandigarh Law Reporter 240, where, it was held that the person about to be searched must be informed of his right, under Section 50 of the Act, to be searched in the presence of a Magistrate or a Gazetted Officer. Violation of this provision, it was held, would per se be fatal to, the prosecution case. Further, it was observed that such offer, should as far as practicable be made in the presence of two independent and respectable witnesses of the locality and if the designated officer fails to do so, the onus would be on the prosecution to prove that association of such witnesses was not possible on the facts and circumstances of a particular case. In dealing with the provisions of Section 50 of the Act, it cannot, but be observed that, it would be rendering them negatory if the safeguard provided thereby, to the person apprehended, to be searched in the presence of a gazetted officer or magistrate, can be brushed aside on merely the bald statement of a police officer, that such offer was declined by him. As is well-known, the legislature has always been somewhat wary of accepting statements made to the police, as would be apparent from the provisions of Section 162 of the Code of Criminal Procedure, whereby statements, made by any an accused to the police, in the course of investigation, are made inadmissible and if such statement is a confession, it is also hit by Section 25 of the Evidence Act. The provisions of Section 80 of Act have thus to be construed in this context. To give meaning, and content to the clear legislative intent underlying the safeguard provided by Section 50 of the Act, cogent and reliable evidence and not merely the statement of a police officer, must be brought on record to establish that the person to be searched was informed of his right to be searched in the presence of a gazetted officer or magistrate, but he chose to decline this offer. In Sudarshan Kumar's case (supra), it has no doubt been suggested that such offer should be made before two reliable and independent witnesses, but with respect, it would be appropriate and more in consonance with the interest of justice that as a rule of general practice, the person apprehended should be taken before a gazetted officer or magistrate and searched in his presence. The stringent minimum punishment prescribed by the Act clearly renders such a course imperative. Search otherwise than before a gazetted officer or magistrate should therefore, be the exception and that too for sound and convincing reasons founded upon reliable material on record. The onus of showing that the person to be searched declined such option being upon the prosecution." ;