Back
PUNJAB & HARYANA HIGH COURT
Harphul Singh Brar, J.
Chhabil Das
Versus
State Of Haryana
Criminal Appeal No. 452 of 1995,
Decided On : SEPTEMBER 1, 1997
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50, 52, 55, 42 - VIOLATION - CONVICTION QUASHED - SUMMARY
Fact of the Case:
The appellant was convicted under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the Act) for possessing 4 kg of opium. The prosecution alleged that the appellant was apprehended on suspicion and the opium was recovered from a bag he was carrying. The appellant denied the charges and claimed trial.
Finding of the Court:
The court found that the mandatory provisions of Sections 50, 52, 55, and 42 of the Act were violated during the arrest and seizure of the opium. The appellant was not served with a notice, grounds of arrest were not provided, the case property was not produced before the SHO, and the required seals were not affixed on the samples.
Issues: 1. Whether the mandatory provisions of Sections 50, 52, 55, and 42 of the Act were violated during the arrest and seizure of the opium? 2. Whether the non-compliance of the mandatory provisions of the Act vitiates the trial?
Ratio Decidendi: 1. The court held that the mandatory provisions of Sections 50, 52, 55, and 42 of the Act were violated during the arrest and seizure of the opium. The appellant was not served with a notice, grounds of arrest were not provided, the case property was not produced before the SHO, and the required seals were not affixed on the samples. 2. The court held that the non-compliance of the mandatory provisions of the Act vitiates the trial.
Final Decision: The court set aside the conviction and sentence of the appellant and acquitted him of the charges.
Harphul Singh Brar, J.
1. The prosecution version has been supplied by Dharamvir, SI, SHO who appeared as PW.2 at the trial. He has stated that on 3.2.1986 he was posted as ASI in CLA, Tohana. On that day at about 4.30 p.m. he and Pyara Lal, Head Constable and Constable Jagjit Singh, Bhagat Singh and Raj Singh were on patrolling duty and were going from village Kulan to village Jabta Khera. Chhabil Das, accused, came from the side of village Jabta Khera who on seeing the police party turned back. On suspicion he was apprehended and the said ASI recovered 4 kg. opium from the thela (bag) which was being carried by the accused at that time. 10 gms. was separated as sample and then the sample and the remaining opium were sealed separately with the seal of DR and the seal after use was given to Head Constable vide memo. Ex. PA. He sent ruqa Ex. PB to the police station on the basis of which formal FIR Ex. PB/1 was registered by Moharer Head Constable Ishwer Singh. After the completion of investigation, the challan was prepared by SHO Bishan Dayal whose signatures he identified.
2. The accused was charged vide order dated 15.6.1995 for having committed an offence punishable under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short to be referred as `the Act) to which the accused pleaded not guilty and claimed trial.
3. Head Constable Pyara Lal (PW 1) has broadly corroborated the prosecution story narrated by PW 2 Dharamvir at the trial. PW (sic) Singh, ASI, P.S. Narnaund appeared as PW 3 and tendered into evidence an affidavit Ex. PD. He had received ruqa on 3.2.1986 and registered the FIR vide Ex. PB.
4. Bhim Singh, Head Constable, P.S. Tohana, appeared as PW-4 and he tendered his affidavit Ex. PE in evidence. The chemical report Ex. PF was also tendered into evidence.
5. While examined under section 313 Cr.P.C., the accused denied the prosecution case as false and stated that nothing was recovered from him and he was falsely implicated in the present case. He did not lead any evidence in defence.
6. Learned Additional Sessions Judge, Hisar vide his judgment/order dated 19.7.1995 convicted the accused of the charge and sentenced him to undergo R.I. for a period of ten years and a fine of Rs. 1.00 lac; in default of payment of fine the accused was ordered to undergo further R.I. for one year.
7. Learned counsel for the appellant has assailed the judgment of the trial Court on the following grounds :-
(i) Mandatory provisions of Sections 50, 52, 55 and 42 of the Act have been violated.
(ii) Independent witnesses have not been joined by the prosecution.
8. Learned counsel for the appellant contends that Sections 50, 52, 55 and 42 of the Act have been violated. PW.2 Dharamvir, SI, has stated at the trial that he apprehended the accused on suspicion and recovered 4 kg. opium from the thela which was being carried by the accused at that time. He has admitted in his cross-examination that he did not serve any notice to the accused. Grounds of arrest were also not supplied to the accused and the accused was not produced before the SHO. This statement of PW 2 has not been denied even by PW 1. He has rather corroborated the same.
9. Learned counsel for the appellant has submitted that the Supreme Court in Mohinder Kumar v. The State of Panaji, Goa, 1995(2) RCR 599 has ruled that even in case of a chance recovery of contraband, mandatory provisions of Sections 42 and 50 are to be followed from the stage when the officer comes to believe that the accused persons were in custody of narcotic drugs.
10. In the case in hand, admittedly, no offer as provided under section 50 of taking the accused to the nearest gazetted officer of any of the department mentioned in Section 42 or nearest to the Magistrate was given.
11. Then as provided under section 55, an Officer incharge of the police station did not take charge and keep in safe custody pending the orders of the Magistrate the opium seized from the accused w
AI
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
