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2016 (4) TMI 538 - SUPREME COURT

2016 (4) TMI 538 - SUPREME COURT - TMI - Seeking modification in rigorous imprisonment and payment of fine order - Possession of 1 kg of opium without any permit or licence - Search was conducted in the presence of and on the instructions of Gazetted officer - Held that:- the extracts of depositions of other prosecution witnesses show that it was not Satbir Singh alone who was involved in the investigation. Therefore, relevant to the note that this was not even a ground projected in support of t .....

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1. Leave granted. 2. This appeal is directed against the judgment and order dated 11.12.2014 passed by the High Court of Punjab and Haryana dismissing Criminal Appeal No. S-318-SB of 2004 preferred by the appellant against his conviction under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ) for being in possession of 1 kg of opium without any permit or licence. 3. According to the prosecution PW6 SI Satbir Singh was on usual patrol duty o .....

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was apprehended. The appellant was told that he was suspected to be carrying opium in his possession and as such his personal search had to be undertaken and that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate. The appellant was given an appropriate notice vide Ext. PA under Section 50 of the Act and by his reply Ext. PA/1 he opted to be searched before a Gazetted Officer. 4. Thereafter a wireless message was sent to PW4 Shyam Singh Rana, DSP Gohana who reac .....

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h. The sample and the remainder were separately sealed and taken in possession vide memo Ext. PB. The seal was then handed over to PW1 ASI Bishamber Lal. Thereafter Ruqa Ext. PC was sent to the Police Station for registration of crime, whereupon FIR Ext. PC was recorded by PW2 Head Constable Om Parkash. 5. The appellant along with the case property was produced before PW3 Yad Ram SHO of Police Station who verified the fact and put his own seal bearing impression YR on the sample as well as on th .....

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nder:- As contraband article was suspected with the accused so he was served with a notice Ext. PA to opt about his search before a Gazetted Officer or a Magistrate, which is bearing my signatures. Accused opted for his search before a Gazetted officer vide endorsement Ex. PA/1 which is bearing my signatures. PW2 Head Constable Om Parkash in his deposition stated as under:- On that day ASI Bishamber Lal deposited the case property with me, which was sealed with seal SS. Pw 3 SI Yad Ram in his de .....

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se of search SI Satbir Singh recovered opium wrapped in a cloth was tied with the stomach of the accused underneath the shirt and the vest of the accused wrapped in a polythene pack. On weighment it was found to be one kilogram. SI Satbir Singh took out 50grams of opium from the recovered bulk and sealed the sample and the remainder into two separate parcels with the sealed bearing inscription SS. Both the sealed parcels were taken into possession vide recovery memo EX. PB which was signed by AS .....

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ault whereof to undergo further rigorous imprisonment for a period of 8 months. 8. The judgment of conviction and sentence was challenged by way of Criminal Appeal of S-318 -SB of 2004 in the High Court. After considering the entire material on record, the High Court by its judgment under appeal affirmed the view taken by the Trial Court and dismissed the appeal. The correctness of the view taken by the High Court is under challenge in the present appeal. 9. It was submitted by Mr. Rakesh Dahiya .....

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f the learned counsel. In State v. Rajangam (supra), the High Court had acquitted the accused. Relying upon the decision of this court in Megha Singh v. State of Haryana 1996(11) SCC 709, the view taken by the High Court was affirmed by this Court in an appeal against acquittal. In Megha Singh the accused was tried under the provisions of the TADA Act and the Arms Act for being in possession of a country made pistol and three live cartridges. The prosecution did not examine any independent witne .....

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