TMI Blog2016 (6) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... the trouser of the accused. If the statement of ASI Ajaib Singh is accepted, that would mean that before giving the offer of search after or before apprising the accused of their right of search, the search was already conducted by ASI Ajaib Singh, after he took out a polythene packet from the left pocket of the accused Alexander. This would mean that the compliance of provisions of Section 50 of the NDPS Act, 1985, was not made and the search is defective. Non-compliance of provisions of Section 42 of the NDPS Act, 1985 - Police received information on the midnight of 3/4.7.2009 and the said information was not reduced into writing and that the ruqa was sent to the police station, which registered the FIR - Whether the ruqa amounts to compliance of provisions of Section 42 of the NDPS Act, 1985 - Held that:- the matter was recently examined by the Apex Court in Darshan Singh Versus State of Haryana [2016 (3) TMI 1037 - SUPREME COURT], a distinction has to be made about non recording of secret information separately and recording of secret information in the FIR. The secret information is required to be separately recorded. Non-examination of independent witness - Held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was sentenced to undergo rigorous imprisonment for three years and to pay fine of ₹ 10,000/-, in default thereof, to further undergo rigorous imprisonment for six months, for allegedly keeping in his possession 130 grams heroine on 4.7.2009. The prosecution story, so far as relevant for disposal of the present appeal, is that on the night of 3/4.7.2009, Inspector Gurwinder Singh (then working as Sub Inspector, Incharge of CIA Staff, Mohali) alongwith fellow officials was present near Ambedkar Nagar in between Sector 70 and 71, Mohali, when he received a secret information that Nigerian citizens, namely, Alex son of Ajle, Favor son of Okko, Alexander son of Monye and Paul son of Uzemudia, who are presently residing in MIG House No. 2711/B, Sector 70, Mohali, are indulging in the sale of heroine, which is purchased from outside. They meet their customers in odd hours in the parks etc. and if a search is conducted in the parks of Sector-70 and 71, SAS Nagar, Mohali, then they can be apprehended with the large quantity of heroine. As the information was found to be credible, ruqa/information (Ex.PW6/A) was sent to the police station, on the basis of which formal FIR (Ex.PW6/B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 21 of the NDPS Act, 1985, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined Lakhbir Singh MHC (PW1), ASI Charan Singh (PW2), Satinderpal Singh, DSP (PW3), ASI Ajaib Singh (PW4), DSP Harbir Singh, the then Inspector/SHO of the police station (PW5), Gurwinder Singh, Investigating Officer (PW6), Constable Kishan Kumar (PW7), ASI Pawan Kumar (PW8) and closed the evidence. When examined under Section 313 Cr.P.C., the accused denied the evidence led against him as incorrect and stated that no recovery was effected from him and has been falsely implicated. The accused did not lead any evidence in defence. After hearing the prosecution, defence and going through the evidence, the learned Judge, Special Court, SAS Nagar, Mohali, convicted and sentenced the accused, as aforesaid. I have heard the learned counsel for the appellant, the learned State counsel and have also carefully gone through the file. The learned counsel for the appellant has assailed the prosecution story on the ground that no compliance of provisions of Section 50 of the NDPS Act, 1985, was made. According to the learned counsel, the present appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gurwinder Singh was not able to communicate in English with the accused, therefore, the offer of search was given to the accused through ASI Ajaib Singh. The offer given was that if they were interested in getting their personal search conducted and in case, they desire, the search to be conducted from a Gazetted Officer or a Magistrate, they could be called. First of all, this is not the proper offer of personal search. The statement of ASI Ajaib Singh, who, according to him, had communicated with the accused in English, would show that the accused were not told that accused have legal right to get the search conducted from a Gazetted Officer or a Magistrate and that if they desire, a Gazetted Officer or a Magistrate can be called at the spot. Since the accused were not informed about their right of search, therefore, the search is otherwise bad in the eyes of law. Moreover, the manner of search and obtaining consent memo is also doubtful. It is not clear whether ASI Ajaib Singh gave the offer of search to the accused in English or it was SI Gurwinder SIngh, who himself gave the offer of search and communicated with the accused. Admittedly, the accused are Nigerian nationals a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation, as also, the communication of the same to the superior officer are separate and distinct from the procedure stipulated under the provisions of the Code of Criminal Procedure. Sub-section 1 of Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of Second Class specially empowered by the State Government may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Subsection (2) of Section 41 refers to issue of authorization for similar purposes by the officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. Subsection (1) of Section 42 of the NDPS Act lays 7 of 10 down, that the empowered officer, if he has a prior information given by any person, should necessarily take it down in writing, and where he has reason to believe from his personal knowledge, that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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