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TMI Blog2015 (8) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... wards village Bichpari and on indication of the informer, apprehended the appellant. The appellant was apprised of the suspicion of Investigating Officer about some contraband in his possession and served with notice Ex.PA which reads as follows:- "You may be in possession of charas or some other intoxicant for which your search is to be conducted. You can get yourself searched by me or some other gazetted police officer or some other gazetted officer". 3. Vide opinion Ex.PB, appellant opted for his search to be conducted before some civil gazetted officer. 4. On message, Sanjay Bishnoi, Tehsildar, Gohana reached the spot. He verified the facts of the case. After conducting search of SI Ram Chander, he asked him to search the appellant. From the right side pocket of pant of appellant, charas wrapped in glaze paper was recovered which on weighing, came to be 500 grams. A sample of 50 gms of charas was separated and sealed with the seal of Investigating Officer. The remaining charas was also put in a parcel and sealed with seal 'RC' and was taken into possession vide recovery memo Ex.PC, ruqaEx.PD was sent to Police Station SadarGohana, whereupon formal FIR Ex.PD/1 was rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on but it was present at Bus Stand of village Bichpari and it immediately rushed to the place where the appellant was present and indulging in sale of narcotic substance. In these circumstances, non-compliance of Section 42 NDPS Act is not made out. The Investigating Officer has specifically stated that no one was willing to join the investigation at the spot and it is usually seen that the people avoid becoming police witness against their co-villager or against the person indulging in anti-social activities. The reason for this is quite obvious as they always want to avoid the feeling of insecurity for themselves or for their family. The contradictions referred in this case are quite immaterial and have been rightly discarded by the trial Court. About the delay of 18 days in sending the samples, learned State Counsel has argued that the samples were received intact in the office of FSL, Madhuban and delay in no manner has caused any prejudice to the appellant. On non-compliance of Section 50 NDPS Act, learned State counsel has argued that the appellant was apprised of his right to get himself searched before some police or civil gazetted officer, however, in the memo (Ex.PA), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrested, searches and seizures made under this Act." 15. In State of Punjab v. Balbir Singh (AIR 1994 SC 1872) , Hon'ble Supreme Court observed as follows: "Consequently the provisions of the Cr.P.C. shall be applicable in so far as they are not inconsistent with the NDPS Act to all warrants, searches, seizures or arrests made under the Act. But when a Police Officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the Cr.P.C. comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follows thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act." 16. The position of law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n case, the benefit of acquittal was allowed to the convict. In case of Ajaib Singh Vs. State of Punjab (supra) this Court, while looking into the aspect of non-joining of independent witness, had discarded the prosecution case on other material factors and not for non-joining of independent witness only. Relevant observations in para 8 and 9 in that case are reproduced as follows:- "8. The non-joining of independent witness is not such a circumstance which reflect on the prosecution story or is a fact which render the official witnesses totally unreliable. In this case the police party had joined Garja Singh as independent witness. He has not been examined in this case and was given up as having been won over by the appellant. Inspector Randeep Singh while appearing as PW-5 has stated regarding the joining of Garja Singh as follows :- "Before the arrival of DSP, Garja Singh had come and he was joined by us. However, when I recorded the statement of accused, Garja Singh was not present." 9. Statement of appellant recorded by the police before the arrival of DSP is Ex.PD vide which he was given option for his search before a gazetted officer or a Magistrate. The perusal of this m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent Apex Judgments (R.A.J.) 13: 2010 (2) JT 175; though in cases like the case in hand, independent evidence is required, but accused cannot be acquitted merely because no independent witness produced. Hence conviction was upheld inter alia on said ground. So, the contention raised by the learned counsel for the appellant to the effect that evidence of PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) cannot be relied upon for want of corroboration by the evidence of independent witness, is repelled, in view of the judgment (supra)." 23. In the case of SumitTomar versus State of Punjab, 2013(1) SCC 395 , Hon'ble Supreme Court on the point of non-examination of independence witness joined by the police, has observed as follows: "In view of the above discussion, we hold that though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible. In that case, the information related to the search of contraband in the shed used for storing fodder in the farmhouse of the accused. The recovery was also effected after opening the lock of the fodder room. In the instant case, the recovery was effected from the appellant at a public place near the watercourse. This contention of learned counsel for the appellant raised in this appeal is, as such, rejected. Non-compliance of Section 50 NDPS Act 30. It is here that the prosecution has failed to meet with the mandatory requirements of Section 50 NDPS Act, which lays down the manner in which search of the person of accused suspected of carrying some contraband is to be effected. Perusal of the notice (Ex.PA) served upon the appellant under Section 50 NDPS Act shows that he was apprised that he can opt for his search to be conducted by the Investigating Officer SI Ram Chander, some gazetted police officer or some other gazetted officer. 31. Here a question which arises for consideration is as to whether the above option is sufficient compliance of provisions of Section 50 NDPS Act. A Constitution Bench of Hon'ble Supreme Court in case of VijaysinhChandubhaJadeja Vs. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (4) xxxxxxxxxxxxxxxxxxxx (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormation required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce ." 32. Hon'ble Apex Court authentically observed that 'we have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.' 33. Perusal of the notice given under Section 50 NDPS Act as reproduced in para 2 reveals that this notice is short of compliance of the provisions of Section 50 NDPS Act which require to apprise the suspect of his right to get his search conducted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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