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2016 (6) TMI 310 - PUNJAB & HARYANA HIGH COURT

2016 (6) TMI 310 - PUNJAB & HARYANA HIGH COURT - TMI - Seeking modification in the sentence order - undergo rigorous imprisonment for three years and pay fine of ₹ 10,000/-, in default thereof - Possession of 130 grams of heroine - Non-compliance of Section 50 of the NDPS Act, 1985 - Held that:- 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 doubtfu .....

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before the SI Gurwidner Singh, whereas SI Gurwinder Singh has stated that he himself conducted the search and took out the polythene packet from the left pocket of 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. Th .....

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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:- it is very difficult on the part of the police to obtain the services of an independent witness at the time of effecti .....

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shown that despite the fact that the case property was ultimately sent on 10.7.2009, there was any tampering with the case property.

Sample taken before the Court, but the same was not produced - Held that:- this fact itself is not sufficient to throw out the prosecution case. Similarly, if while complying with the provisions of Section 52-A of the NDPS Act, 1985, the photographs were not taken, it would not be fatal to the prosecution case. Moreover, in this case, according to the p .....

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ds acquitted of the charges framed against him under Section 21 of the NDPS Act, 1985. He be released forthwith, if not required in any other case. - Decided in favour of appellant - CRA No. S-3371-SB of 2013 (O/M) - Dated:- 1-6-2016 - Kuldip Singh, J. For the Appellant : Ms. Tanu Bedi and Mr. Shivam Grover, Advocates For the Respondent : Mr. A.P.S. Gill, Assistant A.G. Punjab ORDER Kuldip Singh J. Alexander (appellant), a Nigerian national, has filed this appeal against the judgment of convicti .....

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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 resid .....

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the checking in different parks of Mohali was conducted. On 4.7.2009, at about 9:50 AM, Inspector Gurwinder Singh joined Jaspal Singh son of late Bachan Singh, resident of House No. 235, Phase-3-A, Mohali, as independent witness and reached the park of Sector-70, Mohali. There, four Nigerian nationals were found sitting. On seeing the police party, all the four said Nigerians tried to run away in different directions, but all of them were apprehended by different members of the police officials. .....

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h the samples were separated. From the present accused-appellant Alexander, 130 grams of heroine was recovered, out of which two samples, weighing 5 grams each were separated. Then, the sample parcels and bulk parcel were sealed with the seal 'GS', belonging to SI Gurwinder Singh and the seal of DSP (D), SAS Nagar, Mohali, bearing inscription 'SPS'. The case property was taken into possession by the police through recovery memo Ex.PW3/E and the accused were arrested. On reaching .....

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the police, the learned Illaqa Magistrate, vide order Ex.PW6/Q, allowed the disposal of the case property. The samples were sent to the chemical examiner, who vide his report reported that the substance recovered from accused Alexander was heroine. The report was also made regarding the remaining persons, apprehended at the spot. Accused was chargesheeted under Section 21 of the NDPS Act, 1985, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined .....

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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. Ac .....

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ey are in possession of some intoxicating substance and that SI Gurwinder Singh wants to conduct their personal search and if they desire, a Gazetted Officer or a Magistrate can be called to the spot. The accused agreed for their search before the investigating officer. Thereafter, the personal search of the accused was conducted, from which heroine was recovered from a packet. The witness has further stated that he had prepared the consent memo of Alexander and others in English on the instruct .....

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said polythene envelope before the investigating officer. Thereafter, the search was conducted by SI Gurwinder Singh. The formal search of the accused was already conducted before the arrival of the DSP (D), but the official search was conducted after his arrival. Again said, the recovery was effected in the presence of DSP (D). This is in complete contradiction to the statement of SI Gurwinder Singh who maintained as PW6 that since accused were not able to understand Hindi or Punjabi, therefor .....

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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 .....

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r it was SI Gurwinder SIngh, who himself gave the offer of search and communicated with the accused. Admittedly, the accused are Nigerian nationals and they do not understand Hindi or Punjabi. Then the statement of ASI Ajaib Singh shows that on apprehension of accused Alexander, he took out the polythene/envelope from the left pocket of his trouser and then produced the accused and the polythene packet before the SI Gurwidner Singh, whereas SI Gurwinder Singh has stated that he himself conducted .....

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de and the search is defective. The learned counsel for the appellant has further argued that in this case, the compliance of provisions of Section 42 of the NDPS Act, 1985, was also not made. The police had received the information on the midnight of 3/4.7.2009. However, the said information was not reduced into writing and that the ruqa was sent to the police station, which registered the FIR. Now, the question would arise whether the ruqa amounts to compliance of provisions of Section 42 of t .....

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ibed at the beginning of this order, as also, the communication of the first information report to the Superintendent of Police, Panipat, would constitute an effective compliance of the provisions contained in Section 42 of the NDPS Act. 10. Having given our thoughtful consideration to the submission advanced at the hands of learned counsel for the respondent, we are of the view that the mandate contained in Section 42 (1) of the NDPS Act, requiring the recording in writing, the details pertaini .....

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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 .....

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ate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by this Court in Karnail Singh's case (supra) and the same will not be assumed, merely because the Station House Officer concerned had registered a first information report, which was also dispatched to the Superintendent of Police, in compliance with the provisions of the Code of Criminal Procedure. Therefore, a distinction has to be made about non recording of secret information separat .....

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ward for fear of reprisal by the accused. Therefore, non examination of independent witness is not material. The learned counsel for the appellant has further argued that the Station House Officer, who had put his seal on the case property and deposited the same with the MHC, who kept his seal with him. Therefore, the possibility of the case property being tampered with cannot ruled out. I am of the view that the Station House Officer is to handle many case properties. There were two other seals .....

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