STATE OF RAJASTHAN Vs TARA SINGH
Bench: HARJIT SINGH BEDI,CHANDRAMAULI KR. PRASAD, , ,
Case number: Crl.A. No.-000262-000262 / 2006
Diary number: 11673 / 2004
Advocates: MILIND KUMAR Vs
NARESH KUMAR
Crl.A. No. 262 of 2006 REPORTABLE 1
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 262 of 2006
STATE OF RAJASTHAN ..... APPELLANT
VERSUS
TARA SINGH ..... RESPONDENT
O R D E R
1. This appeal against acquittal filed by the State
of Rajasthan arises out of the following facts:
1.1 At about 5:00p.m. on the 2nd February, 1988 the
Station in charge of police station Sangdia received
information through an informer that one Tara Singh
would be coming near the Jhandewalan Sikhan river,
carrying opium. The necessary entries etc. were made in
the Police Station register and a raiding party was
organised by the Police Officer. As the raiding party
reached near Jhandewalan Sikhan at 6:00p.m. a person
carrying a white coloured bag was seen coming from the
Crl.A. No. 262 of 2006 REPORTABLE 2
opposite side and on seeing the police party took a
sudden turn and started running away. He was chased and
apprehended and on enquiry revealed his name as Tara
Singh, the respondent herein. An offer of a search in
terms of Section 50 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter called
'the Act'), was, accordingly, made to him and he stated
that he would like to be searched in the presence of
the Station incharge himself. He was, accordingly,
searched and the bag that he was carrying was found to
contain 8 kg. of opium. Samples of the opium were taken
out and sent to the laboratory for analysis and the
balance was deposited in the Malkhana. On the
completion of the investigation, the respondent was
charged under Sections 8/15 of the Act and was brought
to trial. The trial court relying on the evidence of
several witnesses who had constituted the raiding party
as also the report of the laboratory, held that the case
against the respondent had been proved beyond doubt. He
was, accordingly, sentenced to 10 years R.I. and to a
fine of Rs. 1 lakh. An appeal was thereafter filed by
the respondent in the High Court. The High Court
allowed the appeal on two grounds: (i) that the
provisions of Section 50 of the Act had not been
complied with and the offer to the accused that he could
Crl.A. No. 262 of 2006 REPORTABLE 3
be searched in the presence of a Gazetted Officer or
Magistrate had not made to him; and (ii) that there was
no evidence to show as to when the sample had been sent
to the laboratory, as the forwarding letter dated 26th
February, 1998, of the Superintendent of Police
(Exhibits P20 and P21) sent along with the samples did
not explain why the samples had reached the laboratory
on the 9th March, 1998 and it was not thus clear where
the samples had remained between the 26t February, 1998
and 9th March, 1998. The appeal was, accordingly,
allowed and the respondent was, acquitted,. It is in
these circumstances that the present appeal has been
preferred by the State.
2 At the very outset, it must be understood that the
provisions of Section 50 would no longer be applicable
to a search such as the one made in the present case as
the opium had been carried on the head in a gunny bag.
A Bench of this Court in State of Himachal Pradesh v.
Pawan Kumar (2005) 4 SCC 350 after examining the
discrepant views rendered in various judgments of this
Court has found that Section 50 of the Act would not
apply to any search or seizure where the article was not
being carried on the person of the accused. Admittedly,
in the present case, the opium was being carried on the
Crl.A. No. 262 of 2006 REPORTABLE 4
head in a bag. Mr. Abhishek Gupta, the learned counsel
for the appellant-State, therefore, appears to be right
when he contends that the observations of the High
Court that the provisions of Section 50 of the Act would
not be applicable was no longer correct in view of the
judgment in Pawan Kumar's case. We find, however, that
the second aspect on which the High Court has opined
calls for no interference. As per the prosecution story
the samples had been removed from the Malkhana on the
26th of February, 1998, and should have been received in
the laboratory the very next day. The High Court has,
accordingly observed that the prosectuion had not been
able to show as to in whose possession the samples had
remained from 26th February, 1998 to 9th March, 1998. The
High Court has also disbelieved the evidence of P.W. 6
and P.W.9, the former being the Malkhana incharge and
the latter being the Constable, who had taken the
samples to the Laboratory to the effect that the samples
had been taken out on the 9th of March, 1998 and not on
the 26th February, 1998. The Court has also found that
in the absence of any reliable evidence with regard to
the authenticity of the letter dated 26th February, 1998
it had to be found that the samples had remained in some
unknown custody from the 26th February, 1998 to 9th March,
1998. We must emphasise that in a prosecution relating
Crl.A. No. 262 of 2006 REPORTABLE 5
to the Act the question as to how and where the samples
had been stored or as to when they had despatched or
received in the laboratory is a matter of great
importance on account of the huge penalty involved in
these matters. The High Court was, therefore, in our
view, fully justified in holding that the sanctity of
the samples had been compromised which cast a doubt on
the prosecution story. We, accordingly, feel that the
judgment of the High Court on the second aspect calls
for no interference. The appeal is, accordingly,
dismissed. The respondent is on bail. His bail bonds
stand discharged.
..............................J [HARJIT SINGH BEDI]
..............................J [CHANDRAMAULI KR. PRASAD]
NEW DELHI MARCH 29, 2011.