Intelligence Officer, N. C. B. Jammu vs Vijay Kumar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(J&K) 427

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Tashi Rabstan and Sanjay Dhar, JJ.
Intelligence Officer, N.C.B. Jammu – Appellant
Versus
Vijay Kumar - Respondent
CRAA No.37/2017
Decided on : 01-04-2021

Advocates:
Advocate Appeared:
For the Appellant(s): Mr. Vishal Sharma, ASGI
For the Respondent(s):Mr. Kapil Sharma, Advocate vice, Mr. H.S. Salathia, Advocate

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 8/20/61-Seizure of Charas-Section 50 of NDPS Act would not be attracted in case of search of a 'bag' as in present case where contraband was found in bag which accused was carrying but it is applicable only in case of 'personal search'-Gazetted Officer must be an "independent officer" and must not be one, who is officially involved in process of detention, search and arrest-A Gazetted Officer, who is a part of raiding party and moves out in pursuit of a specific information, about commission of offence under NDPS Act by person or persons, cannot be said to be independent inasmuch as he is "dependent" on pursuit of information, and "success" of such information into apprehension, search and arrest of such offender-No law should be oppressive, unjust and opposed to concept of fairness as enshrined in Article 21 of Constitution of India-Criminal law must have its application tested on touchstone of fairness-Trial judge was right in holding that Gazetted officer before whom search is to be conducted cannot be member of raiding and searching team. (Paras 6 and 10)
Result-Appeal dismissed.

Judgment

Tashi Rabstan, J.-The instant criminal acquittal appeal arises out of the impugned judgment dated 30.12.2015 passed by the learned 1st Additional Sessions Court, Jammu (Special Court under NDPS Act) in Complaint No. 68/2007, whereby the learned trial Court has acquitted the accused/respondent herein of the charges framed under Sections 8/20/61 of NDPS Act, 1985.

2. Before we examine the propriety of impugned judgment it will be necessary for us to refer to the facts giving rise to the present acquittal appeal filed by the appellant-Intelligence Officer, NCB, Jammu.

2(a) On the basis of secret information received by complainant-Intelligence Officer NCB, Jammu from reliable source that one person, namely, Vijay Kumar S/o Bansi Lal R/o Village Phinder, R.S. Pura will supply the contraband-charas to the smugglers of Punjab on 04.06.2007 at Asia Hotel Chowk, Jammu at about 09:00 am to 10:00 am. The matter was subsequently brought to the notice of Balwinder Kumar, Superintendent NCB and acting on the said information a team was constituted and a naka was laid at Asia Hotel Chowk, Jammu. Prior to laying of naka, complainant Sanjeev Chandel called two independent witnesses to witness the search operation. At about 10:00 am, a person resembling the identity of the person regarding whom the information was received got down from the bus at Asia Hotel Chowk who was subsequently cordoned by the NCB staff. Upon being enquired about his identity, the person disclosed himself as Vijay Kumar S/o Bansi Lal R/o Village Phinder, R.S. Pura. The I.O. Sanjeev Chandel told Vijay Kumar that he is having information regarding the possession of charas by him and therefore he had to take his search. He was told about the provisions of Section 50 of the NDPS Act that he had a right to get himself searched in the presence of any nearest Magistrate or any gazetted officer. He further informed that one Balwinder Kumar Superintendent, NCB who is accompanying the raiding party is also a Gazetted officer. One written notice to that effect was given to him. On this notice, accused/respondent gave his consent in writing in Hindi and stated that he is ready to get himself searched in the presence of Balwinder Kumar, Superintendent, NCB. Thereafter, the search of the accused was conducted by I.O Sanjeev Chandel in presence of Balwinder Kumar, Superintendent NCB. On opening the carry bag held by Vijay Kumar a transparent polythene bag tied with tape was recovered and on opening the same a greenish brown coloured material tied in maize cover was found which was tested with Drug-Testing Kit and the material was found to be positive for charas.

2(b) The material, after being separated from maize cover was weighed which came to be 2 kg, was seized and a recovery-cum-seizure memo was prepared on the spot, but as there was heavy rush on the spot, the NCB team along with the accused, independent witnesses and recovered contraband-charas, returned to NCB Office where necessary procedure of drawing samples and sealing was followed.

2(c) After recording the statement of the accused under Section 67 of the NDPS Act, his personal search was made and he was arrested. Arrest Memo and Jamatalashi was prepared. The seized goods Lot-A, packing material Lot-B and two samples A-1 and A-2 were deposited in the godown of NCB, Jammu for safe custody. The test memo was prepared and one sample was sent to CRCL, New Delhi through Sepoy Tilak Raj for chemical analysis and after the test a test report F.No. 1/ND/R/2007/CLD234(N) dated 17.07.2007 received from CRCL New Delhi revealed that the sample contained charas.

2(d) After completion of the investigation, complaint under Section 8/20/61 of NDPS Act 1985 was laid before the Principal Sessions Court Jammu against the accused on 01.08.2007. The accused was charge-sheeted for commission of aforesaid offence vide order dated 18.10.2007, who denied the charges and claimed trial, whereafter the prosecution was directed to lead evidenc