Present: Dr. Anmol Rattan Sidhu Senior Advocate with Vs. State (Govt. of Nct of Delhi) Air 2013 Sc 2068 and Sumit - Court Judgment

CRA-S-1101-SB of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA-S-1101-SB of 2010 Date of decision:

30. 06.2014 Sukha Singh ........ Appellant Versus State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE R.P. NAGRATH1 Whether Reporters of the local papers may be allowed to see the judgment?.

2. To be referred to the Reporters or not?.

3. Whether the judgment should be reported in the digest?. Present: Dr. Anmol Rattan Sidhu, Senior Advocate with Mr. Nandan Jindal, Advocate for the appellant. Mr. Deepak Garg, AAG, Punjab. R.P. NAGRATH, J.

The appellant and two others were tried of the charge under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and Section 353 of the Indian Penal Code (IPC) for having assaulted the members of police party at the time of their apprehension. The trial Court acquitted the accused persons under Section 353 IPC by holding that none of the police officials had in fact suffered injuries in the scuffle. Co-accused Satpal and Balwinder Singh @ Billi were acquitted of the charge under Section 15 of the Act whereas the appellant stood Jitender kumar 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -2- convicted thereunder. The appellant was sentenced to undergo rigorous imprisonment for ten years and to pay fine of ` 1 lac, in default of payment of fine to further undergo rigorous imprisonment for one year.

2. The prosecution story is briefly stated:- On 27.05.2004, the police party headed by PW-2 ASI Surinder Kumar of Police Station Moonak was holding picketing at T-point near the Tax Barrier of village Chural Kalan in connection with District Red Alert. Balbir Singh son of Dhanna Singh resident of village Bakhora Khurd came there and the police party started having conversation with him. In the meanwhile, Indica Car No.DL-4CJ-5428 of silver colour was seen coming from the side of Jakhal town. There were three occupants in the car. PW-2 gave a signal to the car driver to stop. However, the driver speeded up the car towards Talwara side. They were chased by police party in the official vehicle. The gate of railway crossing was found closed and the car driver reversed his vehicle and tried to turn on the kachha road leading to Jakhal town. ASI Surinder Kumar brought the official vehicle in front of the car. All the occupants of the car alighted from the vehicle and tried to run away. They entered into scuffle with the police. Two of them ran away from the spot whereas appellant Sukha Singh son of Mithu Singh resident of Ward No.10, Near Police Station Lehragaga, District Sangrur was caught. In the Jitender kumar scuffle the appellant suffered some minor injuries on his person. 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -3- The other culprits were identified by HC Billu Singh. PW-2 suspected some contraband article loaded in the Indica Car. The appellant was told that the car was to be searched and he has a right to be searched before a Magistrate or gazetted officer. The appellant opted to be searched in the presence of a gazetted officer. Ex. P2 is the memo prepared in this regard, signed by the appellant and attested by the police officials and Balbir Singh aforesaid. A wireless message was sent to DSP Moonak to reach the spot. The DSP reached in his official Gypsy No.PB-13-1644 and was informed about the facts. Shamsher Singh DSP introduced himself to the appellant that he is a gazetted officer as a DSP and they intend to search the car. DSP further told the appellant that he has legal right to be searched before a Magistrate but the appellant offered his search to be made in the presence of DSP. The consent memo Ex. P3 was reduced into writing which was signed by the appellant and also attested by DSP and other witnesses. On search of the Indica Car conducted by PW-2 ASI Surinder Kumar under the supervision of DSP, two bags of poppy- husk were recovered from the dicky of the car and one from the rear seat. These were marked 1 to 3 at the spot. Two samples from each of these bags weighing 250 gms. were separated and prepared into parcels and weight of the remaining bulk in each of Jitender kumar these bags was found to be 34 kgs. 500 gms. These sample 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -4- parcels were marked as 1A, 1B to 3A to 3B according to the numbering of gunny bags. All these parcels were sealed with seal bearing seal impression 'SK' of PW-2 and sample impression of the seal Ex. P4 was also prepared which was attested by the DSP. The seal after use was handed over to Balbir Singh aforesaid. The entire case property was taken into possession by preparing memo Ex. P5. The Indica Car was taken into possession vide panchnama Ex. P6. Ex. P18 Registration Certificate of the car in the name of appellant was recovered from the dashboard of the car. It indicates that original registered owner of the vehicle was Mohinder Singh son of H. Singh of New Delhi and it was transferred in the name of appellant as per endorsement dated 05.03.2004, Ex. P28 proved during evidence by PW-3 Sukhjit Singh, Clerk in the office of District Transport Officer, Sangrur. On the basis of ruqa Ex. P13 sent from the spot FIR Ex. P14 was registered in the police station. There is endorsement made by the Magistrate on Ex. P14 to the effect that FIR received by the Magistrate at 7.20 p.m. on the same day. On personal search of the appellant currency notes of ` 150/- were recovered vide memo Ex. P15 and grounds of arrest vide Ex. P16 were also communicated to the appellant. PW-2 also prepared the rough site plan Ex. P17. It is also the prosecution story as testified by PW-2 that a special report Ex. P19 to senior officers under Section 57 of Jitender kumar the Act was also sent, giving full detail of the recovery and 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -5- particulars of the accused persons which bears endorsement of DSP (Circle), Moonak dated 27.05.2004. On return to the police station, the case property was deposited with PW-1 HC Bikramjit Singh the MHC of police station with seal intact. On the next day, the case property alongwith accused was produced before the area Magistrate vide application Ex. P20 and the Magistrate passed the order Ex. P23 on the said application. The other two accused were arrested on 30.05.2004. On receipt of report from the Chemical Examiner, charge-sheet against the appellant was presented before the Judge, Special Court. Charge was framed against the appellant and co-accused.

3. The prosecution examined six witnesses in support of its case.

4. The appellant denied all the incriminating circumstances appearing in the prosecution evidence against him during his examination under Section 313 Cr.P.C. It was pleaded that the appellant contested election of Municipal Committee, Lehragaga in the year 2003 which he lost to Sardara Singh. Sardara Singh aforesaid is stated to be a close friend of DSP Shamsher Singh who was the rival candidate. DSP had also threatened the appellant not to contest election against Sardara Singh. It was further pleaded that the appellant filed an election petition against Sardara Singh. On account of this enmity the Jitender kumar appellant was given beating by the police at the best of PW-6 DSP201407.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -6- Shamsher Singh in order to compel him to withdraw the election petition.

5. In defence the accused persons examined DW-1 HC Chand Singh with certain FIRs of Police Station Moonak, DW-2 Makhan Singh Assistant Accountant in the office of Senior Superintendent of Police and DW-3 HC Pritpal Singh, CRC, DPO Sangrur in order to prove that PW-6 retired as DSP on 30.11.2002 and thereafter re-employed on contract basis.

6. Learned trial Court convicted and sentenced the appellant as aforesaid. As per custody certificate produced by learned State counsel the appellant has undergone about four years and three months of imprisonment.

7. I have heard learned counsel for the appellant, the State counsel and have gone through the record of trial Court quite extensively, with their able assistance.

8. Learned appellant's counsel challenged the conviction of appellant on the grounds inter alia:- (i) that the evidence of prosecution comprises of only the official witnesses and the only independent witness allegedly joined was not examined and further that the said witness is stock witness of the police; (ii) that there is violation of mandatory requirement of Section 50 of the Act in as much as the DSP Jitender kumar associated was not holding the substantive rank 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -7- but only re-employed on contract basis. (iii) that there is non-compliance of Sections 52, 55 and 57 of the Act; (iv) that there is delay in sending the samples for analysis; and (v) that no specific question was put to the appellant under Section 313 Cr.P.C. that he was in conscious possession of the contraband article.

9. Learned State counsel on the other hand has supported the judgment of conviction passed by learned trial Court. It was submitted that there is meticulous compliance of the provisions of Section 50 of the Act. Moreover, the recovery was not made from search of the person of appellant and therefore, Section 50 would not be attracted. It was further contended that from the conduct of appellant in trying to run away from the spot an adverse inference can be drawn for imputing knowledge upon him. It is also contended that the additional and most important circumstances would be that appellant himself is the owner of the Indica Car from which the recovery was made providing no escape to the appellant.

10. The prosecution version as narrated has been consistently and elaborately testified by PW-2 ASI Surinder Kumar, the investigating officer. PW-2 also stated that he sealed the case property with his seal bearing seal impression 'SK' and also Jitender kumar prepared the sample impression of seal Ex. P4 which was attested 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -8- by DSP. The seal after use was handed over to Balbir Singh PW. The special report to higher officers, which the witness sent, is Ex. P19. The case property was also produced during examination of PW-2. Ex. P7 to Ex. P9 are second lot of sample parcels and P10 to P12 the bags containing poppy-husk.

11. PW-6 DSP Shamsher Singh has materially and substantially corroborated PW-2. PW-6 stated that when he reached the spot he again gave offer to the appellant of the search to be conducted before some other gazetted officer or a Magistrate but he reposed confidence in PW-6 for which consent memo Ex. P3 was recorded. These witnesses have been extensively cross-examined and they withstood the test of scrutiny. The fact that in the scuffle the appellant suffered some injuries on his person has also been testified by both the witnesses. PW-6 stated that there were some injuries on the person of appellant and very less bleeding on his face.

12. The prosecution has rather brought evidence of medical examination of appellant conducted by PW-5 Dr. Gopi Lal Goel on the same day, which fortifies the prosecution version about the attempt made by the miscreants to run away and entering into scuffle with the police party. PW-2 is categorical in stating that the appellant was not sent for his medical treatment immediately as he was not having serious injury on his person. The doctor even did not admit the appellant and gave him only first aid. The version of Jitender kumar prosecution about the minor scuffle when the appellant was 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -9- apprehended gets complete support from the above factors.

13. It would also be quite relevant to see as to how much the police party had to chase the car of appellant before his apprehension. PW-2 in cross-examination stated that while fleeing the car driver covered a distance of approximately 200 meters where the railway crossing was lying closed. They tried to retreat when Sukha Singh appellant was apprehended but his accomplices fled from there. PW-6 in cross-examination stated that the railway crossing was at a distance of about one furlong from the place of recovery. So this was the kind of effort made by police party in chasing the miscreants. The above responses of the witnesses would make them quite trustworthy.

14. According to PW-2, the police party remained at the spot for about seven hours. Ruqa was sent through a constable from the spot at about 11.45 a.m. and he returned at about 02.00 p.m. Both PW-2 and PW-6 are quite consistent in stating that PW-6 DSP Shamsher Singh had reached the spot at about 7.45 a.m. In fact there is no material discrepancy to bring suspicion in the testimony of both these witnesses.

15. Learned counsel for the appellant contended that evidence of prosecution comprises of only official witnesses and the only independent allegedly joined was not examined. Associating the witness like Balbir Singh who is a stock witness of the police, is also marred by malafides. To fortify this argument the Jitender kumar defence examined DW-1 HC Chand Singh of Police Station 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -10- Moonak who brought the record of four FIRs Ex D1 to D4 in all of which Balbir Singh son of Dhanna Singh is a cited witness of the police. All these cases are under the Narcotic Drugs and Psychotropic Substances Act. The perusal of these FIRs would show that these are all subsequent to the present case. The recovery in the instant case is dated 27.05.2004 and first of such is FIR No.64 dated 14.06.2004 Ex. D1 under Section 15 of NDPS Act is much subsequent to the present case. The other three FIRs are of the year 2005. However, this defence version does not bring any help to the appellant as DW1 in cross-examination stated that all the four cases arising out of FIRs Ex. D1 to D4 resulted into conviction of accused persons in those FIRs.

16. The law on the subject is quite well settled that non- examination of independent witness cannot per se demolish the case of prosecution and that would only require the Courts to be extra cautious while analyzing the evidence. In Ram Swaroop vs. State (Govt. of NCT of Delhi), AIR2013SC2068and Sumit Tomar vs. State of Punjab, (2013) 1 SCC395it was held by Hon'ble Supreme Court that non-examination of independent witness cannot have affect on the prosecution case. The said principle was also elaborately discussed by the Full Bench of this Court in Piara Singh vs. State of Punjab, 1982 Cri. L.J.

1176, and it was held that there is neither a statutory requirement nor precedential mandate for handing over the seal used by the police Jitender kumar officer in the course of an investigation to a third witness forthwith. 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -11- It was further held that it necessarily follows therefrom that even where it has been so done, the non-production of such a witness cannot by itself affect the merits of the trial.

17. Hon'ble Supreme Court held in Kashmiri Lal vs. State of Haryana, 2013 (6) SCC595that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. It was also held that if the testimony of the police officer is found to reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinizing the evidence the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle of quality of the evidence weighs over the quantity of evidence.

18. It would thus be seen whether police officer had any ulterior motive to implicate the appellant in a false case. There is no suggestion of any such prior enmity put to the investigating officer as PW-2.

19. It was only during examination of PW-6 that the story of motive for false implication was set up. PW-6 in cross-examination had rather stated that he did not know the appellant earlier. PW-6 Jitender kumar even does not know if Sukha Singh-appellant contested elections 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -12- of Municipal Committee Lehragaga in the year 2003 or whether the appellant lost the said election to Sardara Singh. PW-6 categorically denied the suggestion that he was friendly with Sardara Singh and supported him in an illegal manner against Sukha Singh. PW-6 also denied that he threatened the appellant not to contest election against Sardara Singh. He even does not know if appellant had filed any election petition against Sardara Singh or whether Sardara Singh and Sukha Singh were on inimical terms. PW-6 even does not know who contested the election of Municipal Committee, Lehragaga during those days. The witness also categorically denied the suggestion that the appellant was given beatings by him to withdraw from the election.

20. The above story of motive has not been substantiated by leading any defence evidence on the subject despite availing enough opportunities. No copy of any such election petition or even to show that the appellant fought election of Municipal Committee was tendered. There is thus no force in the said defence plea. If that is the fact situation the version brought-forth by PW-2 and substantially supported by PW-6, thus cannot be possibly discarded.

21. It was next contended with vehemence that there is blatant breach of provisions of Section 50 of the Act in as much as PW-6 having retired from service on 30.11.2002 was re-employed as DSP on contract basis and that he was not a gazetted officer. Jitender kumar PW-6 stated that he was promoted as DSP in May, 1999 and 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -13- admittedly retired from service on 30.11.2002. He denied the suggestion that on 27.05.2004 he was not a gazetted officer, rather he was re-appointed by the State Government on 01.12.2002.

22. DW-2 Makhan Singh, Assistant Accountant in SSP office and DW-3 HC Pritpal Singh CRC, DPO Sangrur both stated from the record that DSP Shamsher Singh retired on 30.11.2002 on regular basis and thereafter he worked on contract basis. DW-2 also proved Ex. DB copy of the order dated 25.05.2005 which says that the salary of DSP Shamsher Singh was fixed on the basis of last pay drawn minus pension on re-appointment on contract basis.

23. Learned appellant's counsel relied upon Gurjant Singh @ Janta vs. State of Punjab, 2013 (4) RCR (Criminal) 874 to raise two-fold contention; (i) that Sections 42 and 50 of the Act were attracted to the facts of this case and; (ii) that PW-6 was not a gazetted officer being not holding a substantive post of DSP there being no fresh gazette notification.

24. It was held in Gurjant Singh's case (supra) that where a police officer in the normal course of investigation of an offence or suspected offences as provided under the provisions of Criminal Procedure Code and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, the question of invoking Section 50 would not arise. Jitender kumar It was also held that when that principle is examined carefully one 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -14- can easily understand that without any prior information as to possession of any narcotic drug and psychotropic substance, a police officer might have held a search in the course of discharge of his duties as contemplated under the provisions of Code of Criminal Procedure, it would well neigh impossible to state that even under such a situation, the application of Section 50 would get attracted. Hon'ble Supreme Court referred to the distinct feature of the case that on the date of occurrence i.e. dated 04.04.1996 at 00.15 a.m., the police party headed by PW-6, accosted a tractor trolley coming from the side of village Ugrahan, which was stopped by him and that when the driver after stopping the tractor tried to escape was apprehended by the police team. The most crucial aspect of the case was that PW-6 noticed three gunny bags lying in the tractor of the appellant and felt that some incriminating substance was kept in those gunny bags. PW-6, therefore, took the view that before effecting search of the gunny bags, the necessity of affording an opportunity to the appellant to conduct the search in the presence of a Gazetted officer or a Magistrate was imperative. In other words, after noticing three gunny bags, PW-6, as an investigating officer, felt the need to invoke the provisions of Section 50 and thereby provide an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate. When once PW-6 could assimilate the said legal requirement as stipulated under Section Jitender kumar 50 of the NDPS Act principle No.1 in paragraph 25 of the judgment 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -15- reported as State of Punjab vs. Balbir Singh, 1994 (3) SCC299could be applied. In these circumstances, therefore, it was held that Section 50 of the Act would be attracted.

25. To appreciate the contention raised by learned appellant's counsel it would be appropriate to refer to the earlier judgment of Hon'ble Supreme Court reported as Kashmiri Lal vs. State of Haryana, 2013 (6) SCC595decided on 16.05.2013. The facts of the case were on 23.12.1992 at about 10.00 a.m., the police party was present in a Tata Mobile vehicle in connection with excise checking. They received a secret and reliable information that the accused-appellant would come to the 'dhaba' situated on the G.T. Road, on his scooter, carrying opium and if a picket was held, he could be apprehended. The police party sent a V.T. message to the Additional Superintendent of Police to reach the place. Thereafter, Kaptan Singh Superintendent of Police, along with other police officials, went to the T-point of Jahajo Wali Road on G.T. Road and held a picket. In the meanwhile, the accused was seen coming on his scooter, bearing No.DLS-1756 and at that time Muhammad Akil, Additional S.P., Kurukshetra, along with his staff arrived at the spot. He was apprised of the situation and, thereafter, on his instructions search of the tool box of the scooter was conducted and a polythene bag containing of 5 kgs. of opium was recovered and necessary proceedings were conducted.

26. A contention was raised before the Hon'ble Supreme Jitender kumar Court in Kashmiri Lal's case (supra) that there was non- 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -16- compliance of Section 50 of the Act as the appellant was not properly informed about his legal right to be searched before a gazetted officer or a Magistrate. The other contention was that the recovery from tool box of a scooter would not amount to conscious possession of contraband article by the accused. Hon'ble Supreme Court held that there was no dispute over the fact that the seizure had taken place from the tool box of the scooter. There was ample evidence on record that the scooter belongs to the Appellant. It was held that when a vehicle is searched and not the person of an accused, needless to emphasize, Section 50 of the Act is not attracted. Hon'ble Supreme Court relied upon the principle on the subject as so held in Ajmer Singh vs. State of Haryana, 2010 (3) SCC746 Madan Lal vs. State of H.P., 2003 (7) SCC465and State of H.P. vs. Pawan Kumar, 2005 (4) SCC350 It was thus held that the aforesaid submission of appellant was without any substance.

27. Judgment in Kashmiri Lal's case (supra) was not referred to or discussed in Gurjant Singh's case (supra). Even in the instant case it has been convincingly proved by the prosecution that the Indica car is owned by the appellant. Registration certificate Ex. P18 shows that the vehicle was transferred in the name of the appellant on 05.03.2004. The prosecution also examined PW-3 Sukhjit Singh, Clerk in the office of DTO office, Sangrur who brought the record of the Indica car in question and Jitender kumar stated that this is transferred in the name of Sukha Singh son of 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -17- Mithu Singh resident of Ward No.10, Lehragaga, District Sangrur, which is the address of the appellant. PW-2 even stated in chief- examination itself that the Indica car in question was taken on superdari by appellant. There is even record of application dated 11.06.2004 moved by the appellant for release of the vehicle on superdari as owner of the vehicle and he furnished superdarinama on 07.04.2005.

28. A full Bench of our Hon'ble High Court held in M/s Indo Swiss Time Limited vs. Umrao and others, 1981 PLJ189that there is a great difficulty of making a choice between the decisions of a superior court when they are in direct conflict with each other. However, when such divergence arises and the litigants' fortune depends thereon, the issue cannot possibly be evaded. Obviously in such a situation it is not the province of the High Courts or the subordinate Courts to comment on the judgments of a superior court which are patently entitled to respect. Its plain duty in the interest of justice is to respectfully follow that which appears to it to state the law accurately or in any case more accurately than the other conflicting judgments.

29. A special Bench comprising five Hon'ble Judges of Madhya Pradesh High Court had also an occasion to discuss the aforesaid principle in Jabalpur Bus Operators Association vs. State of Madhya Pradesh, AIR2003(M.P.) 81. It was held that as under:- Jitender kumar “In case of conflict between two decisions of the 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -18- Apex Court, Benches comprising of equal number of Judges, decision of earlier Bench is binding unless explained by the latter Bench of equal strength, in which case the later decision is binding. Decision of a larger Bench is binding on smaller Benches. Therefore, the decision of earlier Division Bench, unless distinguished by latter Division Bench, is binding on the High Courts and the subordinate Courts. Similarly, in presence of Division Bench decisions and larger Bench decisions, the decisions of larger Bench are binding on the High Courts and the subordinate Courts. No decision of Apex Court has been brought to our notice which holds that in case of conflict between the two decisions by equal number of Judges, the later decision in binding in all circumstances, or the High Courts and subordinate Courts can follow any decision which is found correct and accurate to the case under consideration. High Courts and subordinate Courts should lack competence to interpret decisions of Apex Court since that would not only defeat what is envisaged under Article 141 of the Constitution of India but also militate hierarchical supremacy of Courts. The common thread which runs through various decisions of Apex Court seems to be that great value has to be attached to precedent which has taken the shape of Jitender kumar 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -19- rule being followed by it for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the decision put up as a precedent or is per incuriam, having been rendered without noticing some earlier precedents with which the Court agrees. Full Bench decision in Balveer Singh's case1 which holds that if there is conflict of views between the two co-equal Benches of the Apex Court, the High Court has to follow the judgment which appears to it to state the law more elaborately and more accurately and in conformity with the scheme of the Act, in our considered opinion, for reasons recorded in the preceding paragraph of this judgment, does not lay down the correct law as to application of precedent and is, therefore, over-ruled on this point.”. 30. Learned appellant's counsel also referred to subsequent judgment of Hon'ble Supreme Court in State of Rajasthan vs. Parmanand and another, 2014 (2) RCR (Criminal) 40 on the principle that when personal search of the accused is also conducted the provisions of Section 50 of the Act would apply. That contention is being discussed in the later part of the judgment but in this judgment Hon'ble Supreme Court held that a bag, briefcase or any such article or container etc. under no circumstances be treated as a body of human being. Therefore, it Jitender kumar 2014.07.03 16:44 1 State of M.P. Vs. Balveer Singh, 2001 (2) MPLJ644I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -20- is not possible to include these articles within the ambit of word 'person' occurring in Section 50 of the NDPS Act.

31. In Parmanand's case (supra), however, it was held that in case apart from the pocket of the appellant, his person is also search Section 50 of the Act would be squarely applicable, by relying upon two judgments of Apex Court reported as Dilip and another vs. State of Madhya Pradesh, 2007 (1) SCC450and Union of India vs. Shah Alam and another, 2009 (16) SCC644 32. Learned counsel for the appellant submitted that in the instant case also the admitted fact is that the person of the appellant was searched and therefore, there cannot be any escape from the findings as held by Hon'ble Supreme Court Parmanand's case (supra) that Section 50 of the Act has to be complied with.

33. In Parmanand's case (supra) the Sub Inspector conducted the search of the accused and did not find anything on the person of the Respondents. Later on, he searched the bag which was in the left hand of Respondent No.1. In the bag, he found black coloured material.

34. This is not so in the present case. Here the entire proceedings were completed after searching car, separation of the samples and conducted the necessary proceedings and thereafter only that the personal search of the appellant was conducted and cash amount of ` 150/- was recovered for which memo Ex. P15 was prepared. This was done after the ruqa on completion of rest Jitender kumar of the proceedings was sent to the police station for registration of 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -21- the FIR. There is nothing evident from the ruqa Ex. P13 that the personal search of the appellant was conducted during the course of search of the car. This personal search is apparently conducted in terms of Section 51 Cr.P.C. which makes it mandatory for making personal search of the accused persons arrested and to issue them the receipt showing the articles taken into possession on such search. Even Rule 26.3 of Punjab Police Rules, 1934 Volume III mandates the search of persons under arrest. Sub-rule (1) of Rule 26.3 says that all persons arrested by the police and not admitted to bail shall, as soon after arrest as possible, be thoroughly searched; in the case of females such search shall be conducted by a woman and shall in all cases be conducted with due regard to decency. An inventory of all articles taken into custody by the Police from such persons under section 51 of the Criminal Procedure Code shall be prepared in duplicate by the carbon copying process and the carbon copy thereof shall be sent forthwith to a Magistrate as required by section 523 of the said Code (old code 1898).

35. In Dilip's case (supra) the facts were that before seizure of the contraband from the scooter, personal search of appellant had been carried out and admittedly, even at that time the provision of Section 50 of the Act, although required in law, had not been complied with.

36. Similarly in Shah Alam's case (supra) on receipt of Jitender kumar confidential information from an informer on 05.08.1994 a team of 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -22- officers of the Central Bureau of Narcotics laid a vigil at Charbagh bus stand from 11.00 in the morning. At about 5 in the afternoon the informer gave the signal indicating the five suspects, including the two respondents, from each of whom the search party was able to recover 100 grams of heroin in presence of two independent witnesses. Hon'ble Supreme Court found in that case that the two respondents were subjected to body search in the course of which packets of heroin were found in the shoulder bags carried by them and therefore provisions of Section 50 was held applicable by relying upon Dilip's case (supra).

37. In the instant case PW-6 DSP Shamsher Singh clearly stated that the personal search memo of accused was prepared by the investigating officer after sending the ruqa. So the above judgments would not be helpful to the appellant.

38. In any case I find that there is meticulous compliance of Section 50 of the Act. The argument of the learned appellant's counsel was that PW-6 DSP Shamsher Singh having retired from service was re-employed on contract basis and cannot be said to be a gazetted officer. I do not agree with this contention because gazette notification is issued on regular promotion of a police officer to the rank of DSP. There is no question of publishing a notification for the second time on continuation of the said officer on the same post of DSP on the basis of valid appointment may be on contract basis. Gurjant Singh's case (supra) in fact, was a Jitender kumar case where police officer of the rank of Inspector was functioning 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -23- as DSP in a category called 'Own Rank Pay' DSP. It was found that there was no material or counter stand taken to the effect that PW-3 (in that case) was a regularly promoted DSP or that as per rules even as 'Own Rank Pay' DSP he could be equated to any other DSP. That principle thus cannot be applicable to facts of the instant case.

39. The second set of sample parcels Ex. P7 to Ex. P9 and the bags Ex. P12 were produced during examination of PW-2. It is pertinent to observe that no defect was pointed out in the case property. It was, however, contended that there is non-compliance of Section 55 of the Act as the case property was not produced before the SHO of the police station but deposited straightway with the MHC. I do not find this contention can be helpful to the appellant, because sample impression of the seal prepared at the spot was attested by the DSP also who is senior in the rank to SHO. Moreover, the case property was produced before the area Magistrate on the very next day after it was withdrawn from MHC Bikramjit Singh with whom it was deposited with seals intact. Ex. P21 is the application moved before the Magistrate who passed the order Ex. P23. It is recorded by the learned Magistrate in the order that six sample parcels and three gunny bags bearing seal impression 'SK' were produced in intact condition. The same was also verified by the Magistrate.

40. PW-4 Constable Balraj Singh tendered his affidavit Jitender kumar Ex. P29 and the three samples were entrusted to him on 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -24- 07.06.2004 by MHC Balraj Singh for being deposited in the office of Chemical Examiner. This affidavit states that samples were deposited in the office of Chemical Examiner and the seals remained intact. The report of the Chemical Examiner Ex. PZ also certifies that the sample parcels received in the office of Chemical Examiner were intact and agreed with the specimen seal sent. The contents of the samples were found to be poppyHead.

41. It is, however, a settled principle of law that provisions of Section 52, 55 and 57 of the Act are only directory and not mandatory. Hon'ble Supreme Court in Babubhai Odhavji Patel and others vs. State of Gujarat, (2005) 8 SCC725held that provisions of Sections 52, 55 and 57 of the Act are not mandatory provisions and they are only directory. In the said case, it was found that there was no serious violation of these provisions and found to be substantially complied with.

42. There is rather meticulous compliance of Sections 55 and 57 of the Act in this case. PW-2 did state in cross-examination which was conducted two years after his chief-examination was recorded that he does not remember that special report was sent from place of occurrence or not. But in chief-examination there was categorical statement that he sent special report Ex. P19 to higher officers to which reference has already been made. I am also of the view that when ruqa was sent to police station mentioning detailed facts, that would be sufficient compliance of Jitender kumar Section 57 of the Act. FIR Ex. P14 was delivered to the Magistrate 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -25- on the same day at 7.20 p.m. and there is endorsement in the FIR for sending copies to be delivered to area Magistrate as well as senior officers of the police.

43. It was next contended that there was delay of 11 days in sending the samples to the Chemical Examiner. In Hardip Singh vs. State of Punjab, (2008) 8 SCC557 40 days delay in sending the samples of seized opium to Forensic Science Laboratory was found to have no consequence for the fact that the recovery of the said sample from possession of the appellant stands proved and established by cogent and reliable evidence led at the trial. In that case also statement regarding recovery made by the IO was corroborated by higher officer of the rank of DSP, who was examined at length during the trial. It was found that the said recovery was effected in the presence of DSP. Besides it had also come in evidence that till the date, the parcels of sample were received by chemical examiner, the seal put on the said parcels was intact. That itself proves and establishes that there was no tampering with the aforesaid seal on the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from possession of the appellant.

44. The other contention of the learned appellant's counsel was that no specific question was put to the appellant that he was in conscious possession of the contraband articles and relied upon Jitender kumar the judgment of full Bench of this Court in Kashmir Singh vs. 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -26- State of Punjab, 2006 (2) RCR (Criminal) 477 in support of this contention. In the ultimate analysis it was held that each case under the Act would depend upon its own facts. Therefore, no hard and fast rule can be laid down to define what is or what is not 'possession' of a drug or narcotic substance.

45. It would be appropriate to refer to the latest judgment of Hon'ble Supreme Court in Gian Chand and others vs. State of Haryana, 2013 (14) SCC420 In that case the police party saw a jeep coming at a high speed from opposite direction and asked the said Jeep to stop. However, instead of stopping, the driver accelerated the speed of the jeep. This created suspicion in the minds of the police officials and thus they chased the jeep. The occupants of the jeep took a U-turn and in that process the jeep struck the wall of a house in the village. The three occupants of the jeep tried to run away but they were caught by the police and identified as appellants.

46. Hon'ble Supreme Court in Gian Chand's case (supra) held as under:-

“13. The Appellants were found travelling in a jeep at odd hours in the night and the contraband material was found. Therefore, the question arises whether they can be held to have conscious possession of the contraband substances. Jitender kumar This Court dealt with this issue in Madan 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -27- Lal and Anr. vs. State of Himachal Pradesh, 2003 (4) R.C.R. (Criminal) 100, observing that Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences and penalties for possession of such articles. Undoubtedly, in order to bring home the charge of illicit possession, there must be conscious possession. The expression 'possession' has been held to be a polymorphous term having different meanings in contextually different backgrounds. Therefore, its definition cannot be put in a straitjacket formula. The word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Possession in a given case need not be actual physical possession and may be constructive i.e. Having power and control over the article in case in question, while the person to whom physical possession is given holds it subject to that power or control. The Court further held as under: “Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within Jitender kumar 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -28- his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles...It has not been shown by the Accused-Appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act. (Emphasis added) 14. From the conjoint reading of the provisions of Section 35 and 54 of the Act, it becomes clear that if the Accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the court shall presume the existence of mental state for the commission of an offence and it is for the Accused to prove otherwise. Thus, in view of the above, it is a settled legal proposition that once possession of the contraband articles is established, the burden Jitender kumar 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -29- shifts on the Accused to establish that he had no knowledge of the same.”. 47. It was further held that once the possession of contraband material with an accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872. It was further held as established that in the event of an inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court.

48. The manner of apprehension of appellant is almost similar to facts before the Apex Court. In the instant case each and every fact appearing in the prosecution evidence was put to the appellant even with regard to recovery of registration certificate of the vehicle. There could not be any more positive case of the appellant being specifically put the questions about possessing gunny bags in the dicky of the car in which he was travelling. The very fact that the appellant tried to speed away his vehicle was another circumstance put to the appellant, which he denied. So the above contention would not be helpful to the appellant. 49 In view of the above discussion, I find no merit in the instant appeal and the same deserves to be dismissed. On the Jitender kumar question of sentence, the learned trial Court awarded the minimum 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1101-SB of 2010 -30- sentence upon the appellant and therefore, there is no scope of interference in the quantum of sentence. Therefore, the instant appeal is dismissed. June 30, 2014 ( R.P. NAGRATH ) jk JUDGE Jitender kumar 2014.07.03 16:44 I attest to the accuracy and integrity of this document Chandigarh