TMI Blog2010 (2) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh was altered by the Punjab and Haryana High Court vide a separate judgment dated 3.12.2002 arising out of a separate appeal being Criminal Appeal No.855-57 of 1999. Therefore, we do not find any merit in the contention canvassed by learned counsel for the appellant. - CRL.A. 436 OF 2009 - - - Dated:- 15-2-2010 - SATHASIVAM, P AND DATTU, H.L., JJ. JUDGMENT H.L. DATTU, J. 1. This appeal, is directed against the judgment and order of the High Court of Punjab and Haryana in Criminal Appeal No.926-SB of 1997 dated 7.12.2007, whereby and where under, the High Court has upheld the conviction of the appellant by the Additional Sessions Judge, Kurukhestra, vide judgment and order dated 5.11.1997/6.11.1997 in Sessions Case No.14 of 1996, for offences punishable under Section 20 of the Narcotics Drugs amp; Psychotropic Substances Act, 1985. 2. The factual matrix of the case is as under : That on 24.1.1996, ASI Maya Ram accompanied by other police officials, namely, Head Constable Raja Ram and Constables Gian Chand and Shyam Singh was on patrol duty. The said police party was present near the Markanda Bridge when the accused along with another person Randhir Singh were se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstance appearing against him, the accused pleaded innocence and false implication. 4. The case of the appellant before the Sessions Court : (a) that there was no strict compliance of the Section 50 of the Act. (b) independent witnesses not joined and associated during the search. (c) that the accused was falsely implicated in the case. Decision of Sessions Court: 5. The Additional Session Judge has observed that the accused was given an option, whether he should be searched by a Gazetted officer or a Magistrate and after obtaining his option, he was produced before Deputy Superintendent of Police, who is a Gazetted Officer and on his direction the accused was searched and, therefore, there is compliance of Section 50 of the Act. Secondly, the prosecution has shown that there were enough efforts taken by the Investigation Officer to implead independent witness. Thirdly, there has been no missing link in the evidence and thus the prosecution has been able to prove the case beyond reasonable doubt that the accused retained in his conscious possession 500 grams of charas without any permit or license on 24.1.1996 . Thus, the accused was held guilty under Section 20 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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. 10. Section 43 of the Act empowers an officer referred to in Section 42 to conduct search and seizure and arrest in public places. The provision reads as under: Power of seizure and arrest in public places. Any officer of any of the departments mentioned in Section 42 may-- (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub- Section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. 12. The object, purpose and scope of Section 50 of the Act was the subject matter of discussion in number of decisions of this Court. The Constitution Bench of five Judges of this Court in the case of State of Punjab v. Baldev Singh, [(1999) 6 SCC 172], after exhaustive consideration of the decision of this court in the case of Ali Mustaffa Abdul Rahman Moosa vs. State of Kerala, [(1994) 6 SCC 569] and Pooran Mal vs. Director of Inspection (Investigation), New Delhi amp; Ors., [(1974) 1 SCC 345], have concluded in para 57 : (I) When search and seizure is to be conducted under the provision of the Act, it is imperative for him to inform the person concerned of his right of being taken to the nearest gazetted officer or the nearest Magistrate for making search. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irdly, this issue in our considered opinion is no more res-integra in view of the observations made by this court in the case of Madan Lal vs. State of Himachal Pradesh 2003 Crl.L.J. 3868. The Court has observed: A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (See Kalema Tumba vs. State of Maharashtra and Anr. (JT 1999 (8) SC 293), State of Punjab vs. Baldev Singh (JT 1994 (4) SC 595), Gurbax Singh vs. State of Haryana (2001 (3) SCC 28). The language of section is implicitly clear that the search has to be in relation to a person as contrast to search of premises, vehicles, or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh's case (supra). Above being the position, the contention regarding non-compliance of Section 50 of the Act is also without any substance. 14. In State of Himachal Pradesh vs. Pawan Kumar, [2005 4 SCC 350], this Court has stated: A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the appellant has submitted that the evidence of the official witness cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned Counsel. It is clear from the testimony of the prosecution witnesses PW-3 Paramjit Singh Ahalwat, D.S.P., Pehowa, PW-4 Raja Ram, Head Constable and PW-5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of life imprisonment and the life of the co-accused is shared. 19. In the case of Akhil Ali Jehangir Ali Sayyed v. State of Maharashtra, [(2003) 2 SCC 708], this Court maintained that as the second accused was placed on the same situation as the appellant, Article 21 of the Constitution would not permit this court to deny the same benefit to the second accused. 20. The Court of Appeal Albert, Canada in R. v. Christie [2004 Carswell Alta 1224 Alberta Court of Appeal, 2004] discussed the meaning of the principle in connection with sentencing in criminal cases. The Court of Appeal stated: 40. Parity is a principle which must be taken into account in any sentence, and particularly where the offence was a joint venture. There will, of course, be cases where the circumstances of the co-accused are sufficiently different to warrant significantly different sentences, such as where one co-accused has a lengthy related criminal record or played a much greater role in the commission of the offence. Thus, expressing its view on `parity in sentencing' the Court observed: 43. What we must strive for is an approach to sentencing whereby sentences for similar offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. The Court, therefore, concluded the principle to mean: ......it the concept simply is that, when two or more co-offenders are to be sentenced, any significant disparity in their sentences should be capable of a rational explanation. 23. What can be inferred from the above decision is, that for applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial, and consequently, a co-accused is one who is awarded punishment along with the other accused in the same proceedings. However, we are unable to apply the principle of parity to the present case as the record show that the accused Randhir Singh wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
