TMI Blog2017 (12) TMI 632X X X X Extracts X X X X X X X X Extracts X X X X ..... ical examiner in his report (Ex.PP) has further recorded specifically that the seals on the samples were intact and tallied with the specimen seals. The report of the chemical examiner cannot be doubted on any count. The plea of the accused as per his 313 Cr.P.C. statement to the effect that he had been falsely implicated is not supported by any evidence. The factum of recovery of 4 kgs of opium from each of the two accused is fully proved. The said quantity would fall within the category of commercial quantity. No infirmity in the impugned judgment and the same is upheld. There is no room even for reduction in the sentence, keeping in view the quantity of contraband recovered. - Criminal Appeal No. D-480-DB of 2010 - - - Dated:- 5-12-2017 - Hon ble Mr. Justice Rajesh Bindal And Hon ble Mr. Justice Gurvinder Singh Gill Ms. Sushma Chopra, Advocate, for the appellants Mr. Gaurav Garg Dhuriwala, Senior Deputy Advocate General, Punjab ORDER Gurvinder Singh Gill, J. 1. Jasvir Singh and Mangal Singh have filed the present appeal challenging judgment dated 16.2.2010 passed by the learned Judge, Special Court (NDPS), Jalandhar whereby they have been convicted fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on who was officiating as SHO and who upon verifying the facts further sealed the parcels of opium with his seal bearing impressions DR and deposited the said parcels with MHC. One sample each pertaining to opium recovered from each of the two accused was sent to Chemical Examiner for analysis and as per report (Ex.PP) of the Chemical Examiner, the samples were found to be of opium. 4. After conclusion of investigation, challan was presented in the Court of Judge, Special Court (NDPS), Jalandhar on 1.6.2009. Upon finding sufficient grounds to presume that the accused had committed offence punishable under Section 18 of the NDPS Act, 1985, charges were framed accordingly on 13.6.2009 to which the accused pleaded not guilty and claimed trial. 5. The prosecution in order to establish charges framed against the accused examined investigating officer SI Avtar Singh as PW-1 who stated in detail as regards entire proceedings conducted in the case right from recovery of contraband upto filing of challan. PW-2 HC Rajbir Singh who was comprised in the police party headed by SI Avtar Singh appeared as PW-2 and stated in corroboration to the statement of PW-1. PW-3 DSP Amarjit Singh Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the appellants, while assailing the impugned judgment submitted that though an independent witness is stated to have been associated at the time of alleged recovery but he has not been examined which casts a serious doubt on the case of prosecution. The learned counsel further submitted that there is interpolation as regards the date mentioned in various documents prepared at the spot which indicates that the accused have been falsely implicated and all the documents have been created subsequently. The learned counsel also assailed the impugned judgement on ground of delay of 4 days in sending the samples for chemical analysis and that the same assumes importance in light of the fact that some of the seals were admittedly found to be damaged. He further submitted that invaluable right conferred under Section 50 of NDPS Act has been violated in the present case inasmuch as a restricted offer has been extended to the accused wherein no option of being searched before some gazetted officer other than the DSP present at the spot was extended. The learned counsel thus submitted that in view of the aforesaid infirmities the impugned judgment cannot sustain and the accused ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court reported as (2013) 14 SCC 235 Ram Swaroop Vs. State (Government of NCT of Delhi) wherein it was held that prosecution case cannot be doubted for non-examination of independent witnesses especially when there is nothing on record to show that evidence of police officials is untrustworthy. 13. The learned counsel for the appellants has next drawn the attention of this Court to some of the documents i.e. arrest memo of Jasvir Singh (Ex.PD), arrest memo of Mangal Singh (Ex.PF), personal search memo of Jasvir Singh (Ex.PG), personal search memo of Mangal Singh (Ex.PH), ruqa for registration of FIR (Ex.PJ) wherein there appears to be some interpolation in the date written beneath the signatures of SI Avtar Singh which could suggest that initially the date had been written as 7.3.2009 but subsequently the same had been changed to 9.3.2009. However, we find that there is no such interpolation of dated in the consent memos Ex.PA and Ex.PB and the recovery memo Ex.PC. The consent memos and recovery memos are the documents which are prepared at the first instance. In fact, even the site plan Ex.PK shows that there is no interpolation in the date. It cannot be presumed that the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence on record clearly establishes that the sample parcel has not been tampered with and the seal had remained intact. The contention in this regard raised by learned counsel for the appellants is thus found to be devoid of merit and is repelled. 16. The learned counsel for appellants has also assailed the impugned judgment on ground of violation of Section 50 of NDPS Act. In the present case when the accused was apprehended by the police, apart from the Investigating Officer, SI Avtar Singh, DSP Amarjit Singh Bajwa (PW-3) also happened to be there. Upon suspicion that accused were in possession of some contraband, the DSP after his introduction as a gazetted officer, informed the accused that since it was suspected that they were carrying some narcotics, asked them as to whether they wanted their search to be conducted by him or a Magistrate, for which they have a legal right. However, both the accused reposed confidence in DSP. Their consent memos Ex.PA and Ex.PB, to this effect were recorded. The learned counsel while referring to the aforesaid memos has submitted that the DSP, by not giving the accused an offer to be searched before some other Gazetted Officer instead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior. 19. The aforesaid provisions came to be interpreted by a Constitution Bench of Hon'ble Supreme Court in 1999(3) RCR(Criminal) 533 State of Punjab vs. Baldev Singh wherein the following questions of law were considered : (i) Is it the mandatory requirement of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, ( Act for short) that when an officer, duly authorised under Section 42 of the Act, is about to search a person he must inform him of his right under sub-section (1) thereof of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search ? (ii) If any search is made without informing the person of his suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under subsection (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. 22. Thus, there remains no ambiguity that compliance of provisions of section 50 is mandatory. It also stands settled that in compliance of section 50 of NDPS Act, the authorised officer is not just to casually ask the person detained as to whether he wishes his search in presence of a gazetted officer or a Magistrate but such person has to be categorically made aware that it is his right to exercise such an option. 23. While examining the present case in light of aforestated legal position and requirements, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate has to be exercised by the officer making the search and not by the accused. The position as regards the option of the authorised officer to take the person either to gazetted officer or Magistrate is apparent from the the penultimate para of Constitution Bench's judgement in Vijahsinh's case(supra) which reads as follows: We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 26. The legal position as regards option of the authorised officer to take the person either to gazetted officer or Magistrate being clear and in the present case, there being no ambiguity as regards offer of being searched before a Magistrate, who enjoys more confidence compared to other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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