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PUNJAB & HARYANA HIGH COURT
Dr. Sarojnei Saksena, J.
Mahabir
Versus
State Of Haryana
Criminal Appeal No. 814 of 1986,
Decided On : MAY 11, 1995
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT - SECTION 50 - SEARCH AND SEIZURE - MANDATORY PROVISIONS - COMPLIANCE - SECTION 57 - COMPLIANCE - SECTION 41, 42, 43, 74 - AUTHORIZED POLICE OFFICER - INVESTIGATION - VALIDITY - RULE 2(C) OF NARCOTIC DRUGS AND PSYCHOTROPIC RULES - CHEMICAL EXAMINER - AUTHORIZED LABORATORY - ANALYSIS OF NARCOTIC DRUG - VALIDITY.
Fact of the Case:
Appellant challenged his conviction and sentence under Section 17/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, alleging non-compliance with mandatory provisions of Section 50, non-examination of independent witnesses, improper tendering of affidavits, non-compliance with Section 57, lack of authorization of the police officer under Sections 41, 42, and 43, and analysis of the sample at an unauthorized laboratory.
Finding of the Court:
1. Provisions of Section 50 of the Act are not attracted in cases of chance recovery. 2. Non-compliance with mandatory provisions of Section 50 does not vitiate the entire trial unless prejudice is caused to the accused. 3. Affidavits of witnesses were properly tendered in evidence and the accused had the opportunity to cross-examine them. 4. Link evidence was duly proved and the expert report was reliable. 5. Provisions of Section 57 of the Act were complied with by sending a Ruqa to the Police Station and recording the First Information Report. 6. Investigation conducted by an unauthorized police officer is not vitiated due to the transitional provisions of Section 74 of the Act. 7. Analysis of the sample at an unauthorized laboratory is valid as there is no provision debarring such analysis elsewhere.
Issues: 1. Whether mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, were complied with during the search and seizure. 2. Whether the trial Court erred in relying on the evidence of independent witnesses. 3. Whether affidavits of witnesses were properly tendered in evidence and the accused was given an opportunity to cross-examine them. 4. Whether link evidence was duly proved and the expert report was reliable. 5. Whether mandatory provisions of Section 57 of the Act were complied with. 6. Whether the police officer who conducted the search and seizure was authorized under Sections 41, 42, and 43 of the Act. 7. Whether the analysis of the sample at an unauthorized laboratory was valid.
Ratio Decidendi: 1. Provisions of Section 50 of the Act are not attracted in cases of chance recovery, where the police are on patrol duty with the intention to check crime and not to investigate any specific offense. 2. Non-compliance with mandatory provisions of Section 50 does not vitiate the entire trial unless prejudice is caused to the accused. 3. Affidavits of witnesses can be tendered in evidence if the accused is given an opportunity to cross-examine them. 4. Link evidence is duly proved if the witnesses depose that the seal on the sample was intact and it was not tampered with. 5. Provisions of Section 57 of the Act are complied with by sending a Ruqa to the Police Station and recording the First Information Report. 6. Investigation conducted by an unauthorized police officer is not vitiated due to the transitional provisions of Section 74 of the Act, which provides for powers to investigate during the period till no such powers are conferred under Sections 41 and 42 of the Act. 7. Analysis of the sample at an unauthorized laboratory is valid as there is no provision in the Act or Rules debarring such analysis elsewhere.
Final Decision: The appeal was dismissed, and the appellant's conviction and sentence were maintained.
Dr. Sarojnei Saksena, J.
1. Appellant/accused has assailed his conviction and sentence under Section 17/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).
2. In a nutshell the prosecution story was that 18.12.1985, Dalip Singh Assistant Sub Inspector PW-2 alongwith Ballu Ram Head Constable PW1 and other police officials went in a police jeep on patrol duty. At about 3.00 p.m. when they were present on the bridge Mamber Minor, Dayal Singh DW1 met them. After some time Dalip Singh saw the accused going with a bag in his hand. On seeing the police party, accused tried to escape from that spot. On suspicion, he was apprehended. The bag which he was carrying was searched. It contained 4 Kg. of opium. Sample of 50 gram was separated. Sample and the remaining opium was duly sealed on the spot with the seal bearing alphabet DS. On personal search Rs. 2,000/- cash was recovered from the accused. Opium was seized vide seizure memo Ex.PC which was attested by Dayal Singh DW1 and Ballu Ram PW1. Cash was seized vide seizure memo Ex.PD. Ruqa Ex.PE was sent to the Police Station Bara Gudah and, thereupon, First Information Report Ex.PE/1 was recorded by Station House Officer. Dalip Singh prepared a site plan Ex.PF. Statements of the witnesses were also recorded by him. He brought the seized articles alongwith the accused to the police station. Accused was put up in the lock up and seized articles were deposited in the Malkhana with MHC. Sample was sent to Chemical Examiner on 26.12.1985. Affidavits of Head Constable Satbir Singh Ex.PA and Constable Davinder Singh Ex.PB were tendered in evidence to prove that the sample was sent from the Police Station, Malkhana to Forensic Science Laboratory, Madhuban, Karnal. On analysis, Chemical Examiner opined that the sample contained 3.38 per cent of morphine and, thus, it was opium. On these facts, accused was charge sheeted.
3. Accused denied the guilt, though, he admitted the recovery of Rs. 2,000/- from him. He examined Dayal Singh and Gurcharan Singh in his defence.
4. During trial, the prosecution examined Ballu Ram Head Constable PW1 and Dalip Singh Assistant Sub Inspector as PW2. Affidavits of Head Constable Satbir Singh Ex.PA and Constable Davinder Singh Ex.PB were tendered in evidence. FSL report Ex.PD was also tendered in evidence.
5. The trial Court disbelieved the defence version that opium was not recovered from the accused, only Rs, 2,000/- were recovered from him, he was coming to purchase turi from village Jhorar Rohi alongwith Raj Pal. Relying on the prosecution evidence, the trial Court held that on 18.12.1985, accused was having in his possession 4 Kg. of opium without any licence and thus he was convicted and sentenced to ten years rigorous imprisonment with a fine of Rs. 1,00,000/-; in default RI for two years.
6. The appellants learned counsel contended that when the personal search of the accused was taken, mandatory provisions of Section 50 were not adhered to. The accused was not informed that his personal search can be taken before a Gazetted Officer or a Magistrate. Hence, due to violation of this mandatory provision, the whole of the trial stands vitiated and on his count alone accused is entitled to acquittal. He further contended that Assistant Sub Inspector Dalip Singh PW2 has admitted that he was having weighing scale and weight in his investigation bag which indicates that he had already some secret information that the accused is bringing opium with him. In these circumstances, provisions of Section 50 of the Act should have been complied with.
7. Learned Assistant Advocate General, Haryana, relying on State of Punjab v. Balbir Singh, 1994(1) RecentCR 736, argued that since it is a case of chance recovery, provisions of Section 50 of the Act are not attracted. Both the prosecution witnesses have testified that they were on patrol duty. This patrolling was done with a purpose to check crime. They did not go to inves
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