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2020 (3) TMI 139

..... Gazetted Officer, viz., the DSP who was allegedly called in by the ASI when upon being informed about the right under Section 50, the accused demanded compliance of Section 50 and on a telephone message, the DSP arrived at the spot - HELD THAT:- On the one hand, in this case, the very same officer has deposed that he reached the spot at about 01:30 P.M. and the ASI has deposed that he remained at the spot till 03:00 P.M. The DSP has deposed in connection with another case that he reached the spot of that investigation in connection with that case at about 12:20 P.M. and remained there till 02:30 P.M. The argument, therefore, is that from the evidence, the DSP must be present at the same time at two different places. This clearly rendered prosecution case suspect and benefit of doubt should at any rate must go to the accused. Violation of Section 50 - HELD THAT:- This is not a case where anything was recovered on the alleged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required. Non-production of contraband articles - HELD THAT:- In the facts of this case, no doubt the contraband article weighed .....

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..... er Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act). 2. The prosecution case, briefly put, is as follows: On 10.04.2004, ASI-PW7 and other police officials noticed the appellant and another accused approaching from 8, Marla Colony carrying a bag in their hands. On seeing the police party, the accused allegedly turned back and started walking briskly. This aroused suspicion in the mind of the ASI. He intercepted them. The bag was suspected to contain narcotic items. The accused were informed that if they so desired, they could have search of the bag in the presence of a Gazetted Officer or Magistrate. The appellant desired search by a Gazetted Officer. The DSP came to the spot. On his directions, the search was carried out. The bag contained on weighment 6 kilograms 300 grams of opium. Samples were taken. Thereafter, the formal FIR was registered. On receipt of the FSL report and completing investigation, the charge-sheet was filed. Prosecution examined 8 witnesses. The appellant denied incriminating circumstances, in the questioning held under Section 313 of the Code of Criminal Procedure. As noticed earlier, the High Court has affirmed the appella .....

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..... ellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done. 7. In fact, when it was pointed out by learned Counsel for the appellant that the aforesaid view has been disapproved by a Bench of three learned Judges in the decision in State of Punjab v. Baljinder Singh and another (2019) 10 SCC 473, he pointed out that, in fact, a Bench of three learned Judges has come to rely on the decision by the Bench of two learned Judges in the judgment in SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal (2018) 9 SCC 708. 8. The last contention by the learned Counsel for the appellant is that the prosecution has not associated any independent witness in support of its case. He points out by referring to the judgment itself that there were witnesses available but still no witnesses other than the official witnesses have been enlisted in support of the prosecution case. 9. Per contra, learned Counsel for the State would submit that the time of arrival of Sh. Om Parkash, Gazetted Officer (DSP) has not been questioned. He further pointed out that the Court must bear in mind the lapse of time from the date of incident to the tim .....

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..... P) has deposed, inter alia, as follows: He received a telephone call on his mobile phone from ASI. It was at about 01:10 P.M., he received the call. He reached the spot at about 01:30 P.M. The ASI examined as PW-7, has stated that the accused was apprehended at about 01:00 P.M. and they remained at the spot till 04:30 P.M. Notice under Section 50 of the Act, was given at about 01:05 P.M. Message to the DSP was sent telephonically by about 01:05 P.M. He does not remember from the name of the shop from which the telephone call was made. The DSP/Gazetted Officer was present in the office at that time. The DSP came at about 01:20 P.M. He remained at the spot till 03.00 P.M. 13. The case of the appellant is based on the following testimony which was given by the very same, DSP in another case, which has been marked in the Trial Court. In the said case (viz., State v. Heera Lal), he states, inter alia, as follows: On 10.04.2004, he was posted as DSP Head Quarters, Panipat. He was present in his office at about 12 Noon. He deposed to have received a telephone call from a police officer that notice under Section 50 has been served and the person apprehended in the said case opted to have a .....

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..... recovered from the person of the detainee or not. 18. In the said case, the Court went on to hold that requirement of Section 50 was complied with. However, we notice a later development in the form of a judgment rendered by a Bench of three learned judges touching upon the correctness of the view expressed in Dilip (supra) as contained in paragraph 16 of the judgment. 19. In Baljinder Singh (supra), this Court elaborately considered the matter with reference to the applicability of Section 50 in a case where there is a personal search also. 20. This was the case where 7 bags of poppy husk each weighing 34 kg. were found from the vehicle. A personal search of the accused was undertaken after their arrest which did not lead to any recovery of contraband. The High Court found violation of Section 50 as the personal search of the accused was not conducted before the Magistrate/Gazetted Officer and set aside the conviction of the respondent. This Court, in Baljinder Singh (supra), went on to consider the law laid down by the Constitution Bench in Baldev Singh (supra) and, inter alia, held as follows: 16. The conclusion (3) as recorded by the Constitution Bench in para 57 of its judgme .....

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..... ged personal search. The recovery was effected from the bag for which it is settled law that compliance with Section 50 of the Act is not required. 22. The complaint, of non-production of the seized material, is based on case law of this Court originating with the judgment of this Court in Jitendra (supra). It is necessary to survey the case law beginning with Jitendra (supra). In the said case, it is necessary to notice certain facts. There were panch witnesses for the recovery examined by the prosecution. They turned hostile. Apart from the prosecution witnesses PW7, PW8 and PW6, there was found no independent witness regarding recovery. It is worthwhile to set out paragraph 6. It reads as under: 6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and product .....

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..... is no explanation where the seized substance was kept in the meanwhile. 24. It is thereafter the Court noted that last but not the least the narcotic powder was never produced in the trial court as a material object and again there was no explanation for its non-production. It was found that there was no evidence to connect forensic report with the substance that was seized from the possession of the appellant or the other accused (see paragraph 12). It was in these circumstances the Court drew support from the judgment of this Court in Jitendra (supra). The appellant has not been able to demonstrate in the facts of this case any facts which could be likened to the facts stated in paragraphs 10 and 11. At least nothing was urged by the learned Counsel for the appellant on these lines. 25. Next judgment to be noticed is Vijay Jain v. State of Madhya Pradesh (2013) 14 SCC 527. The first feature we notice is that the contention about the contraband not being produced was raised before the trial court (see paragraph 5). It was a case where a suitcase was produced as containing the alleged contraband. In regard to the suitcase, the evidence of PW11 was elaborately considered. It was fo .....

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..... ingh (PW 5) has not produced Register No. 19 maintained in the Malkhana to show the relevant entry in Register No. 19 as to deposit of the case property in the Malkhana. Oral evidence of Harbhajan Singh (PW 3) and Baldev Singh (PW 5) as to the deposit of the contraband seized from the accused with Malkhana is not corroborated by the documentary evidence, namely, the entry in Register No. 19. 11. After referring to the oral evidence of Joginder Singh (PW 2) and Harbhajan Singh (PW 3), the trial court in para 14 of its judgment has recorded the finding that no order of the Magistrate to prove the production of the contraband before the Magistrate was available on the file. After recording such observation, the trial court held that the oral evidence regarding production of the case property before the Magistrate was not trustworthy and not acceptable. In the absence of the order of the Magistrate showing that the contraband seized from the accused was produced before the Magistrate, the oral evidence adduced that the contraband was produced before the Magistrate cannot form the basis to record the conviction. 26. Finally, it is necessary also to refer to paragraph 12 regarding the ob .....

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..... ri) 2028], apart from the aforesaid submission other facets of the matter also weighed with the Court which is evident from paras 7 to 9 of the decision. Similarly in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123 : (2011) 2 SCC (Cri) 547], the fact that there was no explanation where the seized substance was kept (para 11) and the further fact that there was no evidence to connect the forensic report with the substance that was seized, (para 12) were also relied upon while extending benefit of doubt in favour of the accused. Similarly, in Vijay Jain [Vijay Jain v. State of M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276] , the fact that the evidence on record did not establish that the material was seized from the appellants, was one of the relevant circumstances. In the latest decision of this Court in Vijay Pandey [Vijay Pandey v. State of U.P., (2019) 18 SCC 215 : 2019 SCC Online SC 942] , again the fact that there was no evidence to connect the forensic report with the substance that was seized was also relied upon to extend the benefit of acquittal. 16. It is thus clear that in none of the decisions of this Court, nonproduction of the contraband material before the court ha .....

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..... of apprehension of accused none from the public was there. There were shops but there was no residential house. Residential colony is at some distance. No woman from the locality was called. Some respectables were tried to be called. I do not remember the names of the said persons. Prem Singh son of Raja Ram resident of Kahri, Sunil son of Ram Mehar resident of Panipat, Gushan Kumar son of Gainda Ram resident of 8 Marla Colony, Panipat were asked to do so. It was about 2 P.M. DSP had also arrived. The aforesaid persons remained with us for 5/10 minutes. They had showed their inability to such a nature that I did not think it proper to take legal action against them. No shop keeper was called… 33. In the light of this we do not think that a case has been made for overturning the verdict of guilt returned against the appellant. 34. In the circumstances, as noted above, though there appears to be doubt created about whether the DSP was present, upon being called by PW7 having regard to the testimony of the DSP in the other case, in view of the fact that the contraband articles were in fact recovered upon search of the bag, and bearing in mind the view taken by this Court in Ba .....

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