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PUNJAB AND HARYANA HIGH COURT
S.P. Bangarh, J.
Noor Mohd. —Appellant
versus
State of Haryana —Respondent
C.R.A. No. S-389-SB of 1992
Decided on 9.4.2013
Counsel for the Parties:
For the Appellant:Mr. Ashit Malik, Advocate.
For the Respondent: Mr. G.S. Sandhu, AAG, Haryana.
IMPORTANT POINT
The provisions of Section 50 of the Act will come into play only in case of personal search of the accused and not of some baggage like bag, article or container etc. which (accused) may be carrying.
Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 50—Search and seizure to be made in presence of Gazetted Officer or Magistrate—Provision will come into play only in case of personal search of accused and not of some baggage like bag, container or article which accused was carrying—4 kg of opium was recovered from a bag which accused was carrying—Section 50 of the Act had no application.
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 42—Power of entry, search, seizure and arrest without warrants—Provision will be attracted where search is to be effected of any building, conveyance on place—Appellant was apprehended on suspicion and opium was recovered from a bag being carried by him—Copies of FIR were sent to senior police officers and to Magistrate—Compliance of provision stood satisfied. (Paras 24 to 26)
(iii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 52—Person when arrested if not informed of grounds of arrest his, further detention may become invalid—His initial arrest however would not become illegal. (Para 28)
(iv) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 18—Recovery of 4 kg of opium—Independent public witness turned hostile—Evidence of police official witness however was consistent and acceptable —No reason why public witness would sign blank papers and kept silent—His testimony could not be given precedence over testimonies of police official witnesses—Conviction could not be interfered with. (Paras 29 to 31)
(v) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 18—Recovery of 4 kg of opium from accused—Appeal against conviction—11 days delay in sending sample to FSL for analysis—No material to suggest if there was any tampering with sample—Conviction could not be interfered with. (Para 36)
JUDGMENT
S.P. Bangarh, J.—The case of the prosecution is that on 17.9.1989, Maha Singh the then Assistant Sub-Inspector of police station City Panipat at about 3.00 p.m. along with other police officials, was present near Adarsh Udyog Factory Panipat situated along side G.T. road, where Ramesh Chand PW met the police party and was joined in the police party. Immediate, thereafter appellant along with a woman was seen coming on foot along side G.T. road from Delhi side carrying a bag Ex. P1 in his right hand, who on seeing the police party changed their directions towards east, that aroused suspicion in the mind of Maha Singh, Assistant Sub Inspector, who apprehended the appellant and Munni Bai and told them that they are to be searched, in case, they so desired, the same could be done in the presence of some Gazetted Officer. Both, the appellant and Munni Bai opted to be searched without the presence of a Gazetted Officer, by Maha Singh, the then ASI (Supra) and the latter searched the appellant, that resulted into a bag Ex. P1 containing 4 Kgs of opium wrapped in a polythene paper. The appellant could not produce any permit, therefor. 200 grams of opium were drawn as a sample from the bulk opium, that was put in a small tin box, while the remaining opium was put in another tin box.
2. Both the boxes were made into parcels, that were sealed by Maha Singh, the then ASI with his seal bearing impression ‘MS’. The case property including the bag Ex. PI was seized vide recovery memo Ex. PA, that was attested by Dhan Ran HC and Ramesh Chand public witness. Seal after used was handed over to the latter. Later, ruqa Ex. PB was sent by Maha Singh, the then ASI to Police Station City, Panipat, where formal FIR Ex. PB/1 was recorded by Rameshwar Dutt, the then S1. Later, Maha Singh the then ASI prepared rough site plan Ex.PC of the place of recovery of opium and arrested the appellant after informing him the grounds of arrest.
3. On return to the police station, the case property was deposited with Om Parkash HC. A separate case was registered and investigated against Munni Bai. On return to the police station, appellant and the case property were produced before Kedar Singh Rathi SHO, who verified the facts from all concerned and affixed his own seal bearing letter ‘KSR’ on case property. Later, Maha Singh the then ASI deposited the case property with Om Parkash HC, who sent the sample parcel in this case to the Forensic Science Laboratory, Madhuban through Pawan Kumar Constable and the former vide report Ex. PD declared the contents of the sample parcel to be of opium.
4. After completion of investigation, Station House Officer of Police Station City, Panipat, instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C. for short) against the appellant, before the learned Illaqa Magistrate to the effect that it appeared that he has committed an offence punishable under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (Act for short).
5. On presentation of police report, copies of documents, as required under Section 207 Cr.P.C. were furnished to the appellant by the learned Illaqa Magistrate, who later committed the case to the Court of Session, that was entrusted to learned trial Court, where charge under Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 was framed against the appellant, whereto, the latter, pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
6. At the trial, the prosecution examined, as many as, six witnesses whose testimonies are as under:
PW1 Om Parkash HC No. 160 testified that on 17.9.1989, he was posted in Police Station City, Panipat, on that day, Maha Singh ASI deposited two sealed parcels of opium duly sealed with the seals bearing impressions ‘KSR’ and ‘MS’ and he sent the sample parcel of opium of this case to Forensic Science Laboratory, Madhuban for analysis through Pawan Kumar Constable No.1122 and the latter deposite
