Back
PUNJAB & HARYANA HIGH COURT
P.K.Jain, J.
Dyal Singh
Versus
State Of Punjab
Criminal Appeal No. 35 of 1987,
Decided On : APRIL 28, 1995
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 18 - SEARCH AND SEIZURE - REQUIREMENTS - COMPLIANCE - CONVICTION - SET ASIDE - APPEAL ALLOWED.
Fact of the Case:
The appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possessing 200 grams of opium. He was sentenced to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000.
Finding of the Court:
The court found that the appellant's conviction was not sustainable because the prosecution had failed to prove its case beyond a reasonable doubt. The court held that the police officer who conducted the search of the appellant was not empowered to do so under the Act and that the provisions of the Act had not been complied with.
Issues: 1. Whether the police officer who conducted the search of the appellant was empowered to do so under the Act? 2. Whether the provisions of the Act were complied with?
Ratio Decidendi: The court held that the police officer who conducted the search of the appellant was not empowered to do so under the Act because he was not an "empowered officer" as defined in the Act. The court also held that the provisions of the Act had not been complied with because the police officer did not hand over the seized opium to the Officer Incharge of the Police Station and did not affix his own seal to the sample parcel.
Final Decision: The court allowed the appeal, set aside the conviction and sentence of the appellant, and acquitted him of the charge under Section 18 of the Act.
P.K.Jain, J.
1. This appeal is directed against the judgment and order dated December 22, 1986, passed by the Addl. Sessions Judge, Gurdaspur, whereby the appellant has been convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-, or in default of payment of which to undergo further rigorous imprisonment for five years.
2. The prosecution case as unfolded by H.C. Gulzar Singh (PW 2) is that on 20.11.1985, he along with Constable Joginder Singh was patrolling the area of village Dhianpur towards village Kotli via link road. At about 3.00 p.m. they met H.C. Dalbir Singh and Constable Virkha Singh who had come from the side of village Kotli. When they were just talking, the appellant is alleged to have come from the southern side and on seeing the police party sat down at a distance of about 10 paces on the pretext of urinating. Suspicion having arisen, H.C. Gulzar Singh detained him and conducted his search. From the front pocket of the shirt worn by the appellant 200 grams of opium wrapped in a glazed paper was recovered. Five grams of the contents were separated by way of sample. The sample contents and the remaining contents were converted into sealed parcels with the seal of GS, which after use was handed over to HC Dalbir Singh. Recovery memo Exhibit PA was prepared. Since the appellant could not produce any permit for keeping the said opium with him, H.C. Gulzar Singh sent ruqa-Exhibit PC to Police Station, Dera Baba Nanak, on the basis of which Additional MHC Lakhwinder Singh recorded FIR, copy of which is Exhibit PC/I Rough site plan Exhibit PD of the site of recovery was prepared. The sample parcel was sent to the Chemical Examiner and report Exhibit PE was received. After completing the investigation, a charge-sheet was filed against the appellant.
3. In support of its case the prosecution examined five witnesses. HC Dalbir Singh (PW 1) is a witness of the recovery. HC Gulzar Singh (PW 2) is the Investigating Officer. HC Lakhwinder Singh (PW 3) had recorded the FIR of this case. HC Gurdip Singh (PW 5) had taken the sample parcel to the office of the Chemical Examiner.
4. In his statement under Section 313, Code of Criminal Procedure, the appellant denied the allegations of the prosecution and stated that opium was planted upon him by the police. He examined three witnesses in his defence. HC Malkiat Singh (DW 1) had brought the roznamcha regarding the duties of HC Gulzar Singh and Additional MHC Lakhwinder Singh. Santokh Singh (DW 2) is the Sarpanch and Rakha-DW 3 is the Chowkidar of village Gowara. Both these witnesses have deposed that a person in plain clothes had come and taken away the appellant to the Police Station.
5. The learned trial Court, placing reliance on the testimony of HC Gulzar Singh (PW 2), HC Dalbir Singh (PW 1) read with the report Exhibit PE received from the Chemical Examiner, convicted and sentenced the appellant as stated above.
6. I have heard the learned counsel for the appellant as well as the learned counsel for the State. With their help I have also gone through the record of the trial Court.
7. Learned counsel for the appellant has argued that HC Gulzar Singh was not an empowered officer under the provisions of the Act to detain and search the appellant, nor he was authorised under the Act to investigate this case. It has been further argued by the learned counsel that the provisions of Sections 50, 53, 55 and 57 of the Act have not been complied with which is fatal to the prosecution case. It has been highlighted by the learned counsel that HC Gulzar Singh never made any effort to join independent public persons to witness the search of the appellant. It has been pointed out that HC Gulzar Singh could not be on patrolling duty as deposed by him, since he was posted for a specific purpose at a specified place. Thus, it is argued by th
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
