IMPORTANT POINTS
1. When the seized substance answers the definition of manufactured drug being an opium derivative containing di-acetyl morphine , the appropriate Section providing for punishment is Section 21 of the NDPS Act and by reason of citation of wrong Section (Section 22) in the charge, the accused did not suffer any prejudice.
2. If there is a chance recovery of narcotic drug or psychotropic substance during a search in exercise of the power under the provisions of the Criminal Procedure Code, the compliance under Section 50 of the NDPS Act does not arise.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 21, 22, 42, 43 and 50-Indian Penal Code, 1860-Section 307-Conviction u/s 22 of the Act-Appeal-Nakabandi arranged as there was some information about smuggling-Patrolling party noticed two persons coming from the direction of a village-When they were challenged, there was a firing from opposite direction aimed at patrolling party-Naka party apprehended a man with a pistol and a woman-Ten packets of brown sugar /heroin were found in the bag which was slung on the left arm of appellant-On search of jhola , other appellant was carrying ten packets of brown sugar - Brown sugar on analysis was found to be containing di-acetyl morphine -Plea of violation of mandatory requirements of Sections 42 and 50 held not sustainable-Conviction u/s 22 altered to one u/s 21 of the Act as appropriate section providing for punishment is Section 21-Conviction u/s 307 IPC set aside.
       Held : The general information about the smuggling into India which led the Commandant to organize a nakabandi cannot be equated to the receipt of information within the contemplation of Section 42(1) of the Act. In any case, we need not dilate on this aspect further as it is Section 43 that is attracted in the instant case but not Section 42. It is not a case of entering into or searching any building, conveyance or enclosed place. (Para 6)
       If there is a chance recovery of narcotic drug or psychotropic substance during a search in exercise of the power under the provisions of Cr.P.C., the compliance with Section 50 does not arise. However, the empowered officer should, from that stage, proceed to carry out the investigation in accordance with the other provisions of NDPS Act. (Para 8)
       We therefore find no substance in the contention raised by the learned counsel for appellant in regard to violation of Section 50, even assuming that the search of jhola involved search of person. (Para 12)
       It is not denied that the seized substance answers the definition of manufactured drug being an opium derivative containing di-acetyl morphine and therefore the appropriate Section providing for punishment is Section 21. The punishments prescribed under Sections 21 & 22 are the same. By reason of citation of wrong Section in the charge, we do not think that the appellants were handicapped from meeting the case against them or otherwise suffered any prejudice. The trial and conviction cannot therefore be set aside on this score. (Para 13)
       As regards the charge under Section 307 IPC against the second appellant, the evidence of PWs 1 & 2 appears to be vague and scanty and it is not safe to convict him on the basis of this evidence. Apart from the fact that the lead/empties were not recovered or attempted to be recovered, there is no definite evidence that the accused targeted the members of the patrolling party. The direction in which the shot from the revolver travelled and the details relating to other logistics are not forthcoming. On the strength of the evidence of PWs 1 & 2 it can only be said that they heard the sound of firing and then they retaliated. There was every possibility of the accused firing a shot aimlessly to scare away those who challenged him from a distance. Hence he is acquitted of the charge under Section 307 IPC. Of course, his acquittal for the offence under Section 307 does not make any difference as regards the sentence which the appellant has been subjected to under the NDPS Act. (Para 14)

JUDGMENT

P. Venkatarama Reddi, J.-The appellants herein were convicted under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ) and sentenced to undergo imprisonment for ten years and to pay a fine of Rs. 1 lakh. The appellant in Criminal Appeal No. 1144 of 2003, namely, Phuman Singh was also convicted under Section 307 IPC for firing a shot from his pistol at the police party and on that count, sentenced to undergo imprisonment for your years and to pay a fine of Rs. 2,000. The sentences were ordered to run concurrently. The trial Court however acquitted Phuman Singh for the charge under Sections 25 and 27 of the Arms Act on the ground that the sanction of the District Magistrate has not been duly proved by the prosecution. Aggrieved by the same, the appellants preferred appeals in the High Court of Punjab & Haryana. The appeals were dismissed by the impugned judgment which is somewhat cryptic.

2. The prosecution case is as follows :

During the early hours of 2nd August, 1987, Inspector Sukhdev Singh (PW 1) - Station House Officer, Jalalabad P.S. received a telephonic message from the Commandant, BSF, Jalalabad that a special nakabandi (patrolling) has to be organized. He, along with the other police personnel went to the BSF Headquarters and after reaching there the Commandant deputed two Inspectors including Inspector Shivpal Singh (PW 2) and three more BSF personnel to accompany PW 1 for the patrolling. The Commandant instructed them to hold the naka at the canal bridge in the vicinity of Machhiwara village as he had some information about smuggling. At 3.30 a.m. the patrolling party noticed two persons coming from the direction of the village Tahliwala. When they were challenged, there was a firing from the opposite direction aimed at the patrolling party. In self-defence, the Inspectors (PWs 1 and 2) fired one shot each. Another Inspector also fired a light pistol. It was then noticed that a man with a pistol and a woman were the persons coming towards them. The patrolling party confronted them and made the man concerned dislodge his pistol. The naka party then apprehended both of them. First they searched Phuman Singh and found five cartridges in the left fold of his chadar. Then one empty and four live cartridges were also found in the chamber of the revolver thrown on the ground. Ten packets of brown sugar /heron were found in the bag which was slung on the left arm of Phuman Singh. On search of the jhola (hand baggage), the other appellant Durgo Bai was carrying ten packets of brown sugar were recovered. The packets weighed one kilogram each. The ten packets recovered from each were made into separate parcels and the seal of PW 1 was affixed thereon. A recovery memo was prepared and a rucca was also recorded. The revolver and the cartridges were also seized. FIR was recorded on the basis of the rucca. The seized parcels and the revolver were deposited by PW 1 with the property room of which a Head Constable was in-charge. He sent information to the Customs Officers. Thereupon, Inspector-Customs (PW 3) came to the police station on 3.8.1987 and took possession of 20 kgs. of heroin contained in two bags which were handed over to him by PW 1. The seals were found to be in-tact. After weighing the packets, he took out four samples of five grams from each packet on which the seals of PW 3, BSF and police were affixed. After leaving some of the samples with the BSF and police, PW 3 sent 20 samples to the Chemical Examiner for analysis and report. Necessary documentation, such as inventory of the goods seized, was done. The remaining heroin was kept in the packets and sealed and thereafter, the packets were put in a trunk on which PW 3 s seal was affixed and it was deposited in the police malkhana (property room). On 12.8.1987, PW 3 recorded the statements of the witnesses and the accused were interrogated and they gave statements confessing to the commission of cri

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2004 Supreme(SC) 831

Cases Referred (2)