STATE OF PUNJAB VS MAKHAN CHAND, 2004

INTRODUCTION

State of Punjab vs Makhan Chand, 2004 is an important case held in the Hon’ble Supreme Court of India under the criminal appellate jurisdiction. In this case, the Apex court rechecked the judgement passed by the High court of Punjab & Haryana. The Hon’ble bench in this case basically made it clear that when section 50 of the NDPS act can be questioned in a case and can come into picture. The case involves appellant state of Punjab and respondent Makhan Chand. This was a remarkable case decided in the year 2004.

FACTS OF THE CASE 

On 28^th July, 1993, Superintendent Karam Chand (PW-2) who worked as a station house officer at police station, Kotwali, Barnala along with his assistant superintendent Bhupinder Singh, head constable Nishan Singh and with their police party were on their patrolling duty near the bus stand, Barnala. 

When the police party reached near the chowk bye-pass, they saw the respondent (accused) coming out with a tin box in his hand. The suspicious movements reflected by the respondent created a doubt in the minds of police party who then apprehended the respondent as accused. The police party informed him that they suspected him for committing a crime under the NDPS Act and told him that whether he wants to carry out the search in the presence of a Gazetted officer or a nearest magistrate.  

However, the accused rejected the offer for which it resulted into search of the tin box by the police party. The search included a plastic envelope which contained brown colored tablets along with some writing. There were about 37,000 such tablets which were recovered from that envelope. Those sample tablets were delivered to the office of chemical examiner, Chandigarh and it was examined that the tablets contained meconic acid and morphine with a concentration of 1.08%. 

The accused was soon charged with the offences carried under sections 18 and 21 of the NDPS Act and was sent to trial. The additional sessions judge, Barnala convicted him for all the charges made against him. 

The accused was aggrieved by the decision of sessions court and thus, made an appeal in the high court for his conviction. The learned counsel for the accused argued that there was non-fulfillment of section 50 of the act which is a mandatorily strict compliance and there were no independent witnesses present at that point of time and that the statement of PW-1 and PW-2 are vague as it doesn’t talk about any difficulty of joining independent witnesses. 

Therefore, the high court delivered the judgement in favor of the accused (in this court, appellant) stating that the non-joining of independent witnesses will result in non-compliance with section 50 and set aside the judgement delivered by additional sessions court judge and sent the accused for acquittal. 

The state of Punjab was aggrieved by the decision delivered in the high court of Punjab & Haryana and thus, filed an appeal in the Hon’ble Supreme court of India seeking conviction against the accused. 

ISSUES RAISED

• Shall the accused be sent for acquittal as made under the decision by the High court of Punjab & Haryana?

ARGUMENTS RAISED BY THE APPELLANT (STATE OF PUNJAB)

1. The learned counsel for the appellant argued that the question of section 50 of the act which was raised in the high court of Punjab & Haryana wouldn’t arise at all in the first place by taking the help of observation laid down in the case of Baldev Singh and the judgements laid down in the cases of Gurbax Singh Vs. State of Haryana, and Kalema Tumba Vs State of Maharashtra. 

2. The learned counsel has also cited the cases of State of Punjab Vs Baldev Singh, Bharatbhai Bhagwanjibhai Vs State of Gujarat and  State of Punjab Vs Balbir Singh in order to strengthen his side of arguments. 

3. In the case of State of Punjab Vs Baldev Singh, it was held that on a simple reading, section 50 lays down the search on the accused rather than search on any premises, etc. But there is an exception, if the empowered officer conducts search during his duty without any prior information, then section 50 of the act can’t get attracted to those circumstances. So, the question whether the empowered officer has fulfilled or not fulfilled the requirements u/s 50 of NDPS act will not arise at the first place. 

4. Referring to the judgement of the above case, in Bharatbhai Bhagwanjibhai Vs State of Gujarat, it was held that section 50 of the act is laid upon an empowered officer who’s authorized under sections 41, 42 and 43 of the act. The duty of such officer is to inform the accused about his legal right whether to be searched under a gazetted officer or a nearest magistrate. But there is an exception, if the accused reflects any suspicious move during the police’s patrolling duty such as sprinting away from the police upon seeing them, then the provisions under section 50 aren’t attracted. 

5. In the case of State of Punjab Vs Balbir Singh, it was held that when the police is conducting arrests or searches during investigation under Cr.P.C, and if there is non-fulfillment with sections 100 or 165, it will not ultimately invalidate the prosecution. The effect of non-compliance will depend from facts to facts. So, if the police find any substance under NDPS Act during these searches, the provisions under this act can’t apply to such stage. 

6. Therefore, the learned counsel, through above arguments concluded that the question of section 50 of NDPS Act willn’t arise at the first place and the accused should be sent for conviction accordingly.  

ARGUMENTS RAISED BY THE RESPONDENT (MAKHAN CHAND)

1. The learned counsel for the respondent has supported the judgement passed by the High court of Punjab & Haryana and has contended that the entire trial should stand vitiated.

2. The learned counsel has also relied upon certain standing orders and instructions laid down by the central government u/s 52A(1) which needs a specific method to be followed in order to draw down the samples and hence, urged that since, such specific method hasn’t been followed in the present case, the entire trial should stand vitiated. 

3. The learned counsel has also relied upon the judgement of Valsala v. State of Kerala in order to strengthen his side of arguments. 

OBSERVATIONS BY THE SUPREME COURT

The Hon’ble Supreme Court of India has observed that in the present case, the question of section 50 doesn’t arise at the first place. The mere fact that the empowered officer has to make the accused aware of his legal right whether to be searched before a gazetted officer or a nearest magistrate or that there were no independent witness present at that moment for evidence will least bring the difference to the situation. 

The contention made by the learned counsel for the respondent has no substance for two reasons. Firstly, section 52A(1) doesn’t provide powers to central government to lay down procedure for search of an accused but only deals with disposal of seizure of narcotic drugs and psychotropic substances. Secondly, the standing orders were considered in the case of Khet Singh Vs UOI, where the court held that these orders are merely present to guide the officers for a fair investigation. It was also held that these were not mandatorily strict rules as its difficult for the officers to prepare mahazar (written records and documents) at the spot and in the cases of chance recovery, the officer mayn’t have the facility for the seizure of mahazar at the spot itself. 

JUDGEMENT BY THE SUPREME COURT

The Hon’ble Supreme Court of India has delivered that the case of Valsala Vs state of Kerala as relied by the learned respondent counsel was neither touching the facts of present case nor has the high court made any finding which was in favor of accused. Hence, the court disagreed with this contention. 

The court in the present case set aside the judgement which was delivered by the High court of Punjab & Haryana and accepted the judgement which was laid by the additional sessions court judge, Barnala. 

The accused (in this case, respondent) was rightly convicted and sentenced by the trial court and hence, the Apex court ordered the additional sessions court judge to impose back the sentence on the accused. 

CONCLUSION

To conclude, whether section 50 of NDPS Act is applicable or not, it depends from facts and circumstances of the case. In the present case, the justice was delivered fairly and the judgement of High court was set aside as it was going in favor of the accused on the contention that there was non-compliance with requirements of section 50 of the act whereas, in depth, the question of section 50 will not arise in this particular case. The court in this case laid down the criteria when and where section 50 can be applied to a particular case. 

REFERENCE

https://indiankanoon.org/doc/1597257

This case analysis is written by Arpeeta Dash, a 3rd semester student of Symbiosis Law School, Nagpur; an intern at Legal Vidhiya. 

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