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Jasvir Singh And Another Versus State of Punjab

2017 (12) TMI 632 - PUNJAB & HARYANA HIGH COURT

Offence punishable under Section 18 of NDPS Act - factum of recovery of 4 kgs of opium from each of the two accused - Held that:- No force in the contention raised on behalf of the appellant regarding non-compliance of Section 50 of NDPS Act. - PW-1 SI Avtar Singh and PW-2 HC Rajbir Singh stated consistently regarding the factum of recovery of 4kgs of opium from each of the two accused. PW-3 DSP Amarjit Singh Bajwa in whose presence the accused had been searched also stated identically about .....

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ner (Ex.PP) shows that upon chemical examination, the samples were found to be of 'opium'. The chemical 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 fr .....

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iwala, 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 for offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act ) and have been sentenced to undergo rigorous imprisonment for 12 years and pay fine amounting to 1,50,00 .....

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n No.PB-26-A-8118 came from the direction of village Heran which was signaled to stop, in which there were two occupants. Upon inquiry the driver disclosed his name as Jasvir Singh and the passenger sitting by his side disclosed his name as Mangal Singh. One Baldev Singh came at the spot and was associated with the police party. The DSP, after introducing himself to the aforesaid two persons, told them that he is a Gazetted Officer and since it was suspected that they were carrying some narcotic .....

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eparated and the remaining opium as recovered from each of the two persons was found to be weighing 3.980 grams each. The samples as well as the remaining opium was packed into separate parcels. SI Avtar Singh sealed all the parcels with his seal bearing impression AS . DSP Amarjit Singh Bajwa also affixed his seal bearing impression AS on the parcels. While SI Avtar Singh handed over his seal to HC Rajbir Singh, the DSP retained his seal. 3. Ruqa Ex.PJ containing details of the aforesaid recove .....

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aminer, 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 inv .....

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ered his affidavit Ex.PQ in evidence wherein he deposed that on 13.3.2009 MHC Mohinder Pal had handed over two sealed sample parcels to him directing him to deposit the same in the office of Assistant Chemical Examiner, Amritsar, which he deposited. He further deposed that as long as the sample parcels remained in his possession, the same were not tampered with. PW-5 Amarjit, owner of the car from which the accused had been apprehended, deposed that accused Jasvir Singh had taken his car from hi .....

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erein he deposed that SI Dev Raj had deposited the case property with him on 9.3.2009 and that he had handed over the sample parcels to HC Bakshish Singh on 13.3.2009 for depositing the same with Chemical Examiner which were deposited. He further deposed that as long as the sample parcels remained in his possession, the same were not tampered with. PW-8 SI Dev Raj deposed that on 9.3.2009 the case property was produced before him and after verifying the facts he affixed his seal on the case prop .....

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the evidence on record, held that the charges framed against accused were fully established and convicted them accordingly vide judgment dated 16.2.2010. Aggrieved against the same, the accused have preferred the present appeal. 8. The learned 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 prosec .....

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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 are entitled to be acquitted. 9. On the other hand, the le .....

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s addressed before this Court and with able assistance of learned counsel, have also perused record of the case. 11. The foremost submission on behalf of appellants is that though an independent witness namely Baldev Singh is stated to have been associated at the time of recovery, but the prosecution for reasons best known to it has chosen not to examine him, which creates serious doubt on the case of the prosecution. In the present case, the accused had been apprehended in presence of the DSP a .....

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w that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but .....

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ependent 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 .....

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presumed that the accused had been apprehended on 7.3.2009 and that the dates have been changed subsequently. It could even be a case of genuine mistake on part of the person who recorded the body writing of the documents including the date. It is from the totality of the circumstances that any opinion regarding manipulation of documents is to be formed. In the present case when the material documents regarding recovery of the contraband i.e. the consent memos and recovery memo clearly show the .....

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ion of PW-1 SI Avtar Singh, PW-2 HC Rajbir Singh and PW-3 DSP Amarjit Singh Bajwa wherein they have admitted that seals on the parcels of opium produced in the Court from Malkhana are somewhat damaged. 15. We have considered the aforesaid submission. The seals which are affixed on the parcels of recovered contraband are affixed with the help of lak which is a brittle material and there are chances that during handling, the said seals crack down a bit. However, in the present case a perusal of th .....

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delay of 40 days in sending the sample for its chemical examination but the seals were found to be intact when it reached the office of the chemical examiner, held that the delay could not have caused any prejudice to the appellant. In light of ratio of the aforesaid judgment, the delay in the present case in sending the sample cannot ipso facto cause any doubt in the case of the prosecution especially when the evidence on record clearly establishes that the sample parcel has not been tampered w .....

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ed 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 submitt .....

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confining his option qua gazetted officer to the DSP present at the spot. 17. We have considered the aforesaid submission. A perusal of the consent memos Ex.PA and Ex.PB shows that the DSP, after introducing himself as a gazetted officer extended offer in terms of section 50 of NDPS Act to each of the accused separately in the following manner: Q: I, Amarjit Singh Bajwa am posted as DSP, Sub-Division, Nakodar and am a Gazetted Officer of State of Punjab. I have a suspicion that you are possessin .....

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e 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 requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in subs-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought sh .....

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trolled 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 .....

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the nearest Gazetted Officer or nearest Magistrate for making the search ? (ii) If any search is made without informing the person of his such right would the search be illegal even if he does not of his own exercise his right under Section 50(1) ? and (iii) Whether a trial held in respect of any recovery of contraband articles pursuant to such a search would be void ab initio ? 20. The conclusions of the Constitution Bench, may be summarised as follows: (1) That in case of prior information re .....

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the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article. (4) The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duty observed would have to be determined by the Court on the basis of ev .....

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contraband. 21 While in Baldev Singh's case (supra), the Hon'ble Supreme Court chose not to specifically express as to whether the provisions of Section 50 are mandatory or directory, a specific opinion in this regard was expressed when the matter again came to be examined by another Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609, and it was held as under: 29. In view of the foregoing discussion, we are of the firm opinion that the object with whic .....

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r 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 t .....

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as extended. 24. Before proceeding to examine the facts of the present case, the observation of the Constitution Bench of Hon'ble Supreme Court in Vihaysinh's case (supra) to the effect that no strait-jacket formula can be laid down for compliance of section 50 of NDPS Act need to be borne in mind. The relevant extract reads as follows: Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter o .....

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er/investigating officer in the present case. SI Avtar Singh is the recovery officer, who was heading the police party which was present at the spot in connection with nakabandi. The DSP had infact joined the police party later; (iii) It is also settled that once the accused exercises option in terms of section 50, then it is for the authorised officer to take the person detained either before a gazetted officer or a Magistrate, depending upon convenience. In 1999 (1)RCR (Crl) 573 Raghbir Singh .....

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arest Gazetted Officer or the nearest Magistrate 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) eithe .....

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fficer 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 officers, as also observed in Vijahsinh's case(supra), the accused can not be said to have been prejudiced in any manner. The import of the above referred judgements is that the accused must be made aware of his right of search before a gazetted officer or Magistrat .....

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ho had joined the police party headed by SI Avtar Singh, having specifically extended offer of search before Magistrate in addition to be searched before himself being a gazetted officer, and the accused being made aware of his right in this context, the accused can not be said to have been prejudiced in any manner. The position might have been different if the offer of search before Magistrate had not been extended at all, in which case the burden on the prosecution to prove proper compliance o .....

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