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2016 (12) TMI 1 - SUPREME COURT

2016 (12) TMI 1 - SUPREME COURT - TMI - Conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - nature of offence - Held that:- An appraisal of the testimony of the prosecution witnesses and in particular of PW-4 ASI/Satnam Singh and PW-5 HC/Darbara Singh, the seizure witnesses, fully substantiate the recovery of the contraband i.e. Poppy Husk from the conscious possession of the accused persons. That the samples were properly sampled, sealed and forwarded to th .....

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The haul of six bags of Poppy Husk is substantial so much so that it negates even the remote possibility of the same being planted by the police. Furthermore no evidence with regard to bias or malice against the Investigating Agency has been adduced. - In the wake of the above, we are of the unhesitant opinion in the face of the evidence on record, that the prosecution has been able to prove the charge against the accused persons beyond all reasonable doubt. The Courts below have appreciate .....

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ha, learned counsel for the appellant and Mr. V. Madhukar, learned counsel for the respondent. (2) The appellant, faced with concurrent determinations culminating in his conviction along with another, under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act ) is before this Court seeking redress. Whereas the Trial Court, upon the entering finding of guilt had sentenced the accused persons with rigorous imprisonment for 10 years and six months each and fine .....

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and his companion, on being interrogated, disclosed their names. Their car on search revealed six bags stuffed with Poppy Husk. (4) The Investigation Officer, A.S.I. Satnam Singh introduced himself and apprised the appellant and the co-accused of their right to be searched in the presence of a Gazetted Officer or a Magistrate if they so desired but they declined and instead reposed confidence in him. After recording their consent in writing the car was searched in presence of the other members .....

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nformation of the exercise was forwarded to the police station on which a formal FIR was lodged. (5) The sealed samples as well as the contraband as a whole were deposited in the malkhana and were also produced before the concerned Magistrate on the next date along with the accused persons. The sample on chemical examination by the Forensic Science Laboratory disclosed the same to be of Poppy Husk. Eventually, on completion of the investigation challan was submitted and the appellant and the co- .....

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ey denied the correctness thereof and complained of false implication. (8) The Trial Court on a consideration of the evidence on record and after analysing the rival contentions held the charge to be proved and convicted and sentenced both the accused persons as above. The appellant unsuccessfully challenged the conviction and sentence before the High Court. (9) The learned counsel for the appellant has asserted that as the Investigating Agency had contravened the mandatory prescriptions of Sect .....

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ior officer concerned, the exercise was in gross defiance of the edict of Section 57 of the Act rendering the same null and void. The learned counsel for the appellant, to reinforce the above pleas has pressed into service the decision of this Court in Mohinder Kumar vs. State, Panaji, Goa - (1998) 8 SCC 655. No other argument has been advanced. (10) As against this, the learned counsel for the respondent has insisted that the investigation had been conducted in meticulous compliance of the dict .....

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strate through the higher officer i.e., Deputy Superintendent of Police without any delay whatsoever. The sample with the stock of Poppy Husk was properly sealed and deposited with the malkhana immediately as per the procedure prescribed as well, he urged. The learned counsel further submitted that though in a way, compliance of Section 50 of the Act was inessential in the facts of the case, as the vehicle was searched which yielded the contraband, the Investigating Officer by way of abundant ca .....

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7 of the Act, for ready reference, these provisions are extracted herein below: 50. Conditions under which search of persons shall be conducted - (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such req .....

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e that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is co .....

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under which, the search as contemplated in Section 50 are limited only to the contingency of search of any person, Section 57 prescribes that whenever any person makes any arrest or seizure under the Act, he would within 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. As it is no longer res integra that the application of Section 50 of the Act is comprehended and called for only in the case of se .....

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the petitioner and the co-accused were travelling at the relevant point of time and not in course of the search of their person. Noticeably, it had also not been the plea of the defence ever that the alleged seizure according to the accused persons had been from their person. In the contextual facts therefore, Section 50 has no application to espouse the cause of the defence. (14) Qua the imputation of non-adherence of the requisites of Section 57 of the Act, suffice it to note that both the Co .....

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dence forthcoming or referred to by the learned counsel for the petitioner to either contradict or decimate this finding based on records. In this view of the matter as well, the assertion of non-compliance of Section 57 of the Act does not commend for acceptance. In our view, having regard to the facts available, the requirements of Section 57 of the Act had been duly complied with as well. (15) The decision in Mohinder Kumar (supra) not only is distinguishable on facts, as the search therein w .....

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e so much so that if a substantial compliance thereof is made, it would not vitiate the case of the prosecution. Incidentally the decision rendered in Balbir Singh (supra) was rendered by a Coram of two Hon ble Judges whereas the one in Sajan Abraham (supra) was by a three Judge Bench. (16) In Balbir Singh (supra), a Bench of two Hon'ble Judges of this Court had enunciated, adverting to Sections 52 and 57 of the Act that these provisions contain certain procedural instructions for strict com .....

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th the steps to be taken by the officers after making arrest or seizure under Section 41 and 44 are by themselves not mandatory and if there was non-compliance or any delay was involved with regard thereto, then it has to be examined, to ascertain as to whether any prejudice had been caused to the accused and further whether, such failure would have a bearing on the appreciation of evidence regarding arrest or seizure as well as on the merits of the case. (17) Be that as it may, having regard to .....

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