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TMI Blog2018 (1) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... o recover penalty from one Paramjeet. When he reached at P.S. Beriya, Head Constable Rohtash Singh (P.W.2), Constable Umed Singh, Constable Ramladet and Constable Vijaypal Singh accompanied him and they headed towards the house of Paramjeet at Village Beriya Daulat but Paramjeet did not meet in his house. Thereafter, the police party for some other official work headed towards Village Mudiya Hattu via Boria Market and as soon as they reached at Tota Boria Road Tiraha near Ganna Centre, they saw the accused/appellant having bag on his back, who upon seeing the police personnel, tried to run away. Suspecting the accused, the police party caught him and enquired from him, upon which, he told that he is having Poppy husk (vQhe ds MksMs dk pwjk). Accused/appellant was told that possession of poppy husk comes under the provisions of N.D.P.S. Act. The party further told the accused that he is at liberty to get his search done before Gazetted Officer or Magistrate. However, the accused on finding himself caught by the policemen told that the police party may conduct his search and a consent letter (Ext.A1) was prepared on the spot, which was signed by the accused. On being asked, the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1 S.N. Mishra. He has proved Ext.A1 and Ext.A3. 7. P.W.3 S.I. Sumarpal Singh has stated that on 29.01.2001 he started investigation of the case. During the course of investigation, he recorded the statements of witnesses, prepared the site-plan and sent the sample in the court of Additional Sessions Judge, Kashipur, through P.W.4 Constable Rajesh Singh. He further stated that in the letter of A.D.J., it is mentioned that as the sample was not sealed, it was sealed by A.C.J.M. Kashipur. On 9.2.2001, the sample was submitted by P.W.4 Constable Rajesh Singh at Forensic Science Laboratory, Agra sent for chemical examination. Report dated 30.4.2001 was received whereafter he submitted chargesheet against the accused/appellant. In cross-examination, he has stated that there is no entry in the G.D. regarding as to when he saw the recovered item during the course of investigation. He further stated that there is no date mention in Ext.A5. 8. P.W.4 Constable Rajesh Singh has proved the factum of submitting the sample at Forensic Science Laboratory, Agra, by order of the court. 9. Mr. Lalit Sharma, learned counsel for the appellant along with Mrs. Meena Bisht, learned Amicus Curiae has v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conducted under subsection (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.] 57. Report of arrest and seizure.-Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight 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." 13. A perusal of recovery memo would reveal that the police party told the accused that he is at liberty to get his search done before Gazetted Officer or Magistrate, however, the accused on finding himself caught by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt argument of learned counsel for the appellant was that the information was not sent to the Senior Officers within 48 hours about the search, seizure and arrest of the accused appellant. I find force in this argument. Section 57 of N.D.P.S. Act requires that whenever any person makes any arrest or seizure under this Act, he shall, within 48 hours next after such arrest or seizure, make a full report of all the particulars of the arrest or seizure to his immediate official superior. P.W.1 Shyam Narayan Mishra and P.W.2 Head Constable Rohtash Singh have deposed in their statements that the information was given to the S.O. In cross-examination, P.W.1 has stated that the S.O (to whom he alleged to have given information regarding the incident) is of the same rank. He also stated that there is no document regarding the fact that the information was given to the higher officials. This kind of oral assertion does not inspire confidence in the testimony of the witness. In the absence of any documentary evidence, mere ipse dixit statements of P.W.1 and P.W. 2 is not sufficient to conclude that compliance of section 57 was done in the present case. No superior officer was produced nor int ..... 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