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2015 (8) TMI 1117 - PUNJAB & HARYANA HIGH COURT

2015 (8) TMI 1117 - PUNJAB & HARYANA HIGH COURT - TMI - Non-Compliance of condition under which search shall be conducted Appeal against Conviction Appellant was convicted for offence punishable under Section 20(b) of NDPS Act, 1985 and sentenced to undergo rigorous imprisonment and to pay fine Informer apprised police party that appellant was selling charas at that time also and if raid is conducted, charas can be recovered from him After completion of required formalities appellant was .....

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public place, therefore contention of non-compliance of Section 42, rejected Perusal of notice given under Section 50 reveals that notice is short of compliance, which require to apprise suspect of his right to get his search conducted before Magistrate Mere fact that gazetted officer, who was called at spot to conduct search also happened to be Executive Magistrate, in no manner, fulfill lacuna left by Investigating Officer Having failed to comply with provisions of Section 50, in its tr .....

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d Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for five years and to pay a fine of ₹ 40,000, in default thereof, to undergo further imprisonment for a period of two years. 2. As per the prosecution case, Sub Inspector Ram Chander of Police Station SadarGohana was present at Bus Stand of village Bichpari, where he received a secret information that appellant Zile Singh was habitual of selling charas and was presen .....

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ou 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 .....

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plan (Ex.PE) of place of recovery was prepared. The sealed parcels along with the appellant were later on produced before Sub Inspector/SHO Vijender Singh, who also fixed his own seal bearing impression 'VS' on the sealed parcels. The sample was later on sent to Forensic Science Laboratory, Haryana, Madhuban and found to be that of charas vide report (Ex.PG). 5. On completion of investigation, challan against the appellant was presented in the Court. After completion of required formali .....

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n of prosecution evidence, statement of appellant under Section 313 Cr.P.C. Was recorded, wherein he refuted the allegations levelled against him and pleaded his false implication. He did not examine any witness in defence. 8. During the course of arguments, the defence counsel raised following points before the trial Court:- (i) the prosecution case suffers from material discrepancies; (ii) SI Ram Chander being complainant, was not entitled to investigate the case; (iii) no independent witness .....

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nce of Section 42 NDPS Act as the secret information received by Investigating Officer was not reduced into writing and no information was sent to the Senior Officer. There is delay of 18 days in sending the samples, which has not been explained. 11. Learned State counsel has argued that the police party was not present in the police station 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 .....

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ons 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 o .....

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te counsel, the points raised are discussed as follows:- Contradictions in the statements of prosecution witnesses: 13. The contradictions pointed out in the statements of prosecution witnesses are that PW2 Head Constable Dharam Singh had deposed that they received the secret information at about 2.30 PM and reached the spot within 15 minutes while SI Ram Chander PW4 had stated that they reached Bus Stand of village Bichpari at about 03.30 PM and received secret information after 15 minutes. PW2 .....

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r PW4 had stated that they returned from the spot at about 07.00 PM. The above discrepancies were rightly discarded by the trial Court terming the same as minor discrepancies. The material fact is that the appellant was apprehended on 11.10.2003. The discrepancies about the time when the secret information was received and when the accused was apprehended are not material discrepancies which go to the root of the case or render the testimony of the prosecution witnesses unworthy of reliance. Suc .....

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consistent 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 sear .....

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icer 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, which emerges from the judgment of Balbir Singh's case (supra) is that it is only the empowered officer who can conduct the investigation and if an empowered officer comes across a person begin in possession of the narcotic drug or psychotropic substances and had made the search, seizure and arrested the accused under the Act then he can pro .....

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f the above settled proposition of law, this argument of learned counsel for the appellant that case of the prosecution suffers on this account is also without any merit and this argument was also rightly rejected by the trial Court. Non-joining of independent witness:- 18. Learned counsel for the appellant has argued that the independent witnesses from the public were available nearby but were not joined in the investigation. He has relied upon the observations in case of Swaroop Singh Vs. Stat .....

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on is supported not only by the Investigating Officer but also by Head Constable Dharam Singh PW2 and TehsildarGohana Mr. Sanjay Bishnoi PW7. 20. The observations about the independent witness made in the cases referred by learned counsel for the appellant are not applicable to the facts and circumstances of the present case. In case of Swaroop Singh Vs. State of Haryana (supra), independent witness was joined but not examined. Keeping in view the fact that seal was handed over to him and in vie .....

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mstance 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 recor .....

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gation in this case. The non-joining of independent witness from the nearby locality may not affect the case of the prosecution but the fact that the prosecution has shown the presence of an independent witness, who as per the Investigating Officer was not available at the time of recording the memo Ex.PD, totally shatters the prosecution version in this case." 21. The recovery in this case was effected in the presence of Tehsildar Sanjay Bishnoi, who has stepped into witness box as PW7 and .....

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obody was willing to join the police party. Otherwise, it is usually found that independent witnesses avoid joining the police party for the reasons that nobody wants to invite wrath of a co-villager or a dealer in narcotics as for everyone it is the peace and security of himself and his family members, which is of paramount importance. 22. The Hon'ble Division Bench of this Court in the case of Ramesh Kumar Versus State of Punjab, 2013 (4) RCR (Criminal) 320 , has observed that the testimon .....

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udgment observed as follows: "21. It was held by the Hon'ble Supreme Court of India in Ajmer Singh v. State of Haryana, 2012(2) RCR (Criminl) 132: 2010(2) Recent 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 ef .....

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ndent 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 under the Narcotic Drugs and Psychotropic Substances Act." 24. In view of what has been discussed above, non-joining of i .....

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. State of Punjab 2011 (3) SCC 521, has observed that the delay of 12 days in sending the sample is not fatal to the case of the prosecution. HC Ramesh Chander, with whom the case property was deposited by SI Ram Chander, while appearing as PW6, has stated that he kept the case property intact during the period it remained in his possession. He was not even cross-examined on this point by the defence counsel. Constable Nain Pal, who had taken the sample to the office of chemical examiner, while .....

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ed place. Reference can be made to KrishanKanwar (Smt.) Alias ThakuraeenVs. State of Rajasthan 2004 (2) SCC 608 . 28. Section 42 (2) NDPS Act applies to the information received by the police qua one of three places mentioned in Section 42 (1) (a) NDPS Act. The information relating to a person carrying a narcotic at a public place, does not fall within the scope of provisions of Section 42 NDPS Act, as such, non-compliance of the same in this case is not fatal to the prosecution case. 29. Learne .....

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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 .....

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amined the scope and width of the provisions of Section 50 NDPS Act and observed as follows:- "16. At this juncture, we must state that the issue before us in terms of the referral order is not about the applicability of Section 50 of the NDPS Act per se but is confined to the scope and width of the expression "if the person to be searched so requires" as figuring in subsection (1) of the said Section. Therefore, we deem it unnecessary to evaluate the submissions made by the learn .....

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the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-section (2) the power has also been vested in gazetted officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security F .....

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rt to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh's case (supra). We are concerned with the following conclusions:- 57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted offi .....

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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 saf .....

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. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit art .....

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erms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so o .....

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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 hesitati .....

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