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REPORTABLE

          IN THE SUPREME COURT OF INDIA           CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1096 OF 2016 (ARISING OUT OF S.L.P (CRIMINAL) NO.6093 OF 2015)

DILBAGH SINGH     .…APPELLANT

VERSUS

STATE OF PUNJAB                   ....RESPONDENT

J U D G M E N T  

AMITAVA ROY, J.

(1) Heard  Ms.  Aparna  Jha,  learned  counsel  for  the

appellant  and Mr.  V.  Madhukar,  learned counsel  for  the

respondent.

(2) The appellant,  faced with concurrent  determinations

culminating  in  his  conviction  along  with  another,  under

Section  15  of  the  Narcotic  Drugs  and  Psychotropic

Substances  Act,  1985 (for  short  “the  Act”)  is  before  this

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Court seeking redress.  Whereas the Trial Court, upon the

entering finding of guilt had sentenced the accused persons

with rigorous imprisonment for  10 years and six months

each  and  fine  of  Rs.1  lac  each  with  default  sentence  of

rigorous  imprisonment  for  one  year,  the  High  Court  in

appeal  has  confirmed the  verdict  in  toto  by  the  decision

impugned herein.

(3) The prosecution case unfolds with the interception of

the appellant and the co-accused Ranjit Singh by the patrol

party  on  28.08.2007  while  they  were  travelling  in  a  car

bearing registration No.MH-04BS-1651 at the check point

at Khanauri Patran. One Baaj Singh, apart from the police

party was then present. The appellant and his companion,

on being interrogated, disclosed their names. Their car on

search revealed six bags stuffed with Poppy Husk.

(4) The  Investigation  Officer,  A.S.I.  Satnam  Singh

introduced  himself  and  apprised  the  appellant  and  the

co-accused of their right to be searched in the presence of a

Gazetted Officer or a Magistrate if they so desired but they

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declined  and  instead  reposed  confidence  in  him.  After

recording their consent in writing the car was searched in

presence of the other members of the patrol party as well as

Baaj Singh and in course thereof three bags each from the

rear  seat  and  the  dicky,  containing  Poppy  Husk  were

recovered. Samples were taken and sealed with specimen

impression of the Investigating Officer. On weighment of the

remaining Poppy Husk, the contraband weighed 34 kg. 800

gms in each bag minus the samples taken. Personal search

of  the  appellant  and  the  co-accused  yielded  currency  of

Rs.225/- and Rs.150/- respectively which were also seized.

The information of the exercise was forwarded to the police

station on which a formal FIR was lodged.

(5) The sealed samples as well  as  the contraband as a

whole  were  deposited  in  the  malkhana  and  were  also

produced before the concerned Magistrate on the next date

along with the accused persons. The sample on chemical

examination by the Forensic Science Laboratory disclosed

the same to be of Poppy Husk. Eventually, on completion of

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the investigation challan was submitted and the appellant

and the co-accused were made to face trial under Sections

15 and 25 of the Act, as they pleaded “not guilty”.

(6) In  support  of  the  charge,  the  prosecution examined

PW-1/Constable  Ravinder  Singh,  PW-2/S.I.  Jaswinder

Singh, PW-3/M.H.C. Shamsher Singh, PW-4/A.S.I. Satnam

Singh, PW-5/H.C. Darbara Singh and PW-6 Parminderpal

Singh, who had participated in the entire drill.

(7) All  the  incriminating circumstances were laid before

the accused persons in course of their examination under

Section 313 Cr.P.C. and they denied the correctness thereof

and complained of false implication.

(8) The Trial Court on a consideration of the evidence on

record and after  analysing the rival  contentions held the

charge to be proved and convicted and sentenced both the

accused  persons  as  above.  The  appellant  unsuccessfully

challenged  the  conviction  and  sentence  before  the  High

Court.

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(9) The  learned  counsel  for  the  appellant  has  asserted

that  as  the  Investigating  Agency  had  contravened  the

mandatory prescriptions of Sections 50 and 57 of the Act,

the  conviction  recorded  by  the  Courts  below  is  patently

illegal  and  non  est  in  law.  According  to  her,  though

allegedly Poppy Husk was recovered from the car in which

the  appellant  and  the  co-accused  were  travelling  at  the

relevant point of time, adherence to the mandate of Section

50 of the Act was indispensable. Similarly, as no report of

the  operation  undertaken  by  the  Investigating  Agency

involving the alleged seizure of  the contraband had been

reported to the superior officer concerned, the exercise was

in  gross  defiance  of  the  edict  of  Section  57  of  the  Act

rendering the same null and void. The learned counsel for

the appellant, to reinforce the above pleas has pressed into

service the decision of this Court in Mohinder Kumar vs.

State, Panaji, Goa – (1998) 8 SCC 655. No other argument

has been advanced.

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(10) As against this, the learned counsel for the respondent

has insisted that the investigation had been conducted in

meticulous compliance of the dicta of the law qua Sections

50 and 57 of the Act in particular. Not only the accused

persons  were  duly  apprised  of  their  right  of  search  in

presence of  a Gazetted Officer  or  a Magistrate  before the

search of their car, they were afforded all opportunities to

offer their defence in the process undertaken. According to

the  learned  counsel,   the  fact  of  the  interception  of  the

accused persons and the recovery of  the contraband had

been communicated to the concerned police station and to

the Ilaka Magistrate through the higher officer i.e., Deputy

Superintendent  of  Police  without  any  delay  whatsoever.

The  sample  with  the  stock  of  Poppy  Husk  was  properly

sealed and deposited with the malkhana immediately as per

the  procedure  prescribed  as  well,  he  urged.  The  learned

counsel further submitted that though in a way, compliance

of Section 50 of the Act was inessential in the facts of the

case,  as  the  vehicle  was  searched  which  yielded  the

contraband, the Investigating Officer by way of abundant

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caution did adhere thereto as well. As the information with

regard to the entire  gamut of  the  investigation had been

forwarded to the higher officer i.e. Deputy Superintendent

of  Police  and  to  the  concerned  Magistrate  without  any

delay, the demur based on Sections 50 and 57 of the Act is

wholly misplaced, he urged.

(11) The evidence on record as well as the rival assertions

have been duly evaluated.

(12) As  the  essence  of  the  impeachment  is  the

non-compliance of the enjoinment of Sections 50 and 57 of

the Act, for ready reference, these provisions are extracted

herein below:

“50. Conditions under which search of persons shall be conducted -  (1)  When any officer duly authorised under Section 42 is  about to search any  person under  the  provisions of  Section 41, Section 42 or Section 43, he shall, if such person so  requires,  take  such  person  without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

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(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 the Magistrate before whom any such person is brought shall, if he sees no  reasonable  ground  for  search,  forthwith discharge  the  person  but  otherwise  shall  direct that search be made.

(4)  No  female  shall  be  searched  by  anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take  the  person  to  be  searched  to  the  nearest Gazetted  Officer  or  Magistrate  without  the possibility  of  the person to  be searched parting with  possession  of  any  narcotic  drug  or psychotropic  substance,  or  controlled substance or article or document, he may, instead of taking such  person  to  the  nearest  Gazetted  Officer  or Magistrate,  proceed  to  search  the  person  as provided  under  section  100  of  the  Code  of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two  hours  send  a  copy  thereof  to  his immediate official superior.

57. Report  of  arrest  and seizure  - Whenever any  person  makes  any  arrest  or  seizure  under this  Act,  he shall,  within forty-eight  hours next after  such  arrest or seizure, make a full report of

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all the particulars of such arrest or seizure to his immediate official superior.

(13) Whereas  the  conditions  under  which,  the search as

contemplated  in  Section  50  are  limited  only  to  the

contingency of search of any person, Section 57 prescribes

that  whenever  any  person  makes  any  arrest  or  seizure

under the Act, he would within 48 hours next after such

arrest or seizure, make a full report of all the particulars of

such arrest or seizure to his immediate official superior. As

it is no longer res integra that the application of Section 50

of the Act is comprehended and called for only in the case

of search of a person as distinguished from search of any

premises  etc.  having  been authoritatively  propounded by

the two Constitution Bench rulings of this Court in  State

of  Punjab  vs.  Baldev  Singh –  (1999)  6  SCC  172  and

Vijaysinh  Chandubha  Jadeja  vs.  State  of  Gujarat –

(2011) 1 SCC 609, further dilation in this regard,  in the

attendant  facts  and  circumstances  of  the  case,  is

considered inessential. This is more so as the contraband in

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the case in hand had been recovered from inside the car in

which the petitioner and the co-accused were travelling at

the relevant point of time and not in course of the search of

their person. Noticeably, it had also not been the plea of the

defence  ever  that  the  alleged  seizure  according  to  the

accused  persons  had  been  from  their  person.  In  the

contextual facts therefore, Section 50 has no application to

espouse the cause of the defence.

(14) Qua the imputation of non-adherence of the requisites

of  Section 57 of  the  Act,  suffice  it  to  note  that  both the

Courts below, on an analytical appreciation of the evidence

on  record  have  concurrently  concluded  that  the

Investigating Officer at the site, had after the arrest of the

accused  persons  and  or  seizure  of  the  contraband

forwarded the information with regard thereto to his higher

officer,  namely,  Deputy  Superintendent  of  Police  without

any  delay  and  that  the  related  FIR  with  the  necessary

endorsements therein had reached the Ilaka Magistrate on

the  same  date  i.e.  28.08.2007  at  9  p.m.  There  is  no

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evidence forthcoming or referred to by the learned counsel

for  the  petitioner  to  either  contradict  or  decimate  this

finding based on records. In this view of the matter as well,

the assertion of  non-compliance of  Section 57 of  the Act

does  not  commend  for  acceptance.  In  our  view,  having

regard to the facts available, the requirements of Section 57

of the Act had been duly complied with as well.

(15) The decision in  Mohinder Kumar (supra) not only is

distinguishable on facts, as the search therein was of the

petitioner's premises, the investigation was afflicted as well

by  several  other  omissions  on  the  part  of  the  authority

conducting  the  same.  Though  in  this  rendering,  it  was

observed  that   in  State  of  Punjab  vs.  Balbir  Singh –

(1994) 3 SCC 299   the provisions of Sections 52 and 57 of

the Act had  been held to be mandatory in character, it is

pertinent to note that this Court in  Sajan Abraham vs.

State of Kerala – (2001) 6 SCC 692 had exposited that

Section 57 was not mandatory in nature so much so that if

a  substantial  compliance  thereof  is  made,  it  would  not

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vitiate the case of the prosecution. Incidentally the decision

rendered in Balbir Singh (supra) was rendered by a Coram

of two Hon’ble Judges whereas the one in Sajan Abraham

(supra) was by a three Judge Bench.  

(16) In  Balbir  Singh  (supra), a  Bench  of  two  Hon'ble

Judges of this Court had enunciated, adverting to Sections

52 and 57 of the Act that these provisions  contain certain

procedural  instructions   for  strict  compliance  by  the

officers, but clarified that if there was none, such omission

by itself would not render the acts done by them null and

void and at the most, it may affect the probative value  of

the evidence regarding arrest or search and in some cases,

it  may  invalidate  such  arrest  or  search.  That  the

non-compliance  had  caused  prejudice  to  the  accused

persons  and  had  resulted  in  failure  of  justice   was

necessary  to  be  demonstrated,  was  emphasised.   It  was

ruled that these provisions, which deal with the steps to be

taken by the officers after making arrest or seizure under

Section 41 and 44 are by themselves not mandatory and if

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there was non-compliance or  any delay was involved with

regard thereto, then it has to be examined, to ascertain  as

to whether  any prejudice had been caused to the accused

and further whether, such failure would have  a bearing on

the appreciation of evidence regarding  arrest or seizure as

well as on the merits of the case.    

(17) Be  that  as  it  may,  having  regard  to  the  evidence

available  attesting  the  compliance  of  the  requisites  of

Section 57 of the Act in the instant case, we need not be

detained by this issue in praesenti.

(18) Aside the above, an appraisal of the testimony of the

prosecution  witnesses  and  in  particular  of  PW-4

ASI/Satnam  Singh  and  PW-5  HC/Darbara  Singh,  the

seizure  witnesses,  fully  substantiate  the  recovery  of  the

contraband i.e. Poppy Husk from the conscious possession

of the accused persons.  That the samples were properly

sampled,  sealed  and  forwarded  to  the  Forensic  Science

Laboratory through Malkhana also stands established. The

certificate of the Chemical Examiner, FSL to the effect that

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the seal of the samples was found intact and that the same

tallied with the specimen seals also rules out the possibility

of any tampering therewith. The fact that the contraband

was recovered from the car while the same was being driven

by one of the accused persons in the company of the other

also authenticate the charge of their conscious possession

thereof.  The haul of six bags of Poppy Husk is substantial

so much so that it negates even the remote possibility of the

same being planted by the police. Furthermore no evidence

with  regard  to  bias  or  malice  against  the  Investigating

Agency has been adduced.

(19) In  the  wake of  the  above,  we are  of  the  unhesitant

opinion  in  the  face  of  the  evidence  on  record,  that  the

prosecution has been able to prove the charge against the

accused persons beyond all reasonable doubt. The Courts

below  have  appreciated  the  materials  on  record  in  the

correct  legal  and  factual  perspectives  and  the  findings

recorded do not merit any interference. The appeal is thus

dismissed.  The  Trial  Court  is  hereby  directed  to  take

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immediate  follow  up  the  steps  so  as  to  ensure  that  the

sentence awarded is served out by the accused persons.              

        .............................................J.

    (DIPAK MISRA)

                             ............................................J.

    (AMITAVA ROY) NEW DELHI; NOVEMBER  28, 2016.

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