2009 Supreme(P&H) 1056

2009(2) LAW HERALD (P&H) 1652
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice K. Kannan
Crl. Appeal No.2165-SB of 2006 (O&M)
Ajay Malik & Ors.
v.
State of U.T., Chandigarh
{Decided on 22/06/2009}

IMPORTANT POINT
Contraband--Personal Search--Trial Court held that in a case where search was being conducted on the vehicle and not on the person and therefore, Section 50 itself was not applicable--View rejected.
Contraband--Personal Search--Offer--If the accused who was subjected to search was merely asked whether he required the search to be made before a Gazetted Officer or Magistrate, it could not be treated as communicating to him that he had a right under law to be searched.

Headnote:(A) Contraband--Acquittal--Huge Recovery of charas and opium--Neither theatricals nor public opinion shall matter in a big way when a judicial rendition is sought on the forensic application of evidence and law in a given case to find whether the persons that were brought to the dock have been proved to be guilty of the offences attributed against them beyond reasonable doubt--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 18 & 20. (Para 2)

       (B) Contraband--Power of seizure and arrest in public place--Section 43 makes specific reference to power of seizure in a public place, while section 42 deals with a situation where the empowered officer has either personal knowledge or information from any person that any narcotic drug or psychotropic substance in respect of which an offence is committed is kept or concealed in any building, conveyance or enclosed place--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 43.(Para 18)

       (C) Contraband--Power of seizure and arrest in public place--Whenever a search is conducted in a public place, whatever may be the source of information, it will be only section 43 that will be attracted. The trappings of 42(2) of having to communicate the information in writing does not arise. After all it is the possession and transit that constitutes an offence and the source of information is but a process that aids the interception and apprehension. While secret information is still a constituent of the prosecution version, it is not so fundamental as to vitiate a prosecution theory, if the possession could be established by other evidence--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 43. (Para 18)

       (D) Contraband--Personal Search--Trial Court held that in a case where search was being conducted on the vehicle and not on the person and therefore, Section 50 itself was not applicable--View rejected--Held; Section 50 would apply in view of Noor Aga case 2008(3) LAW HERALD (P&H) 2181 (SC)--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50. (Para 20)

       (E) Contraband--Personal Search--Offer--The normal expression, which should have come along with the statement made must have been on these lines “you have a right to be searched by a Magistrate or a Gazetted Officer”; instead the expressions are to the effect whether they wanted the search to be conducted before some Magistrate or a Gazetted Officer. The expressions are not definitely happily worded--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50. (Para 22)

       (F) Contraband--Personal Search--Offer--If the accused who was subjected to search was merely asked whether he required the search to be made before a Gazetted Officer or Magistrate, it could not be treated as communicating to him that he had a right under law to be searched--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50. (Para 22)

       (G) Contraband--Personal Search--DSP was called by raiding party--He asked, “Do you want the search of your car and yourself to be conducted before some magistrate or some Gazetted Officer--I am also a Gazetted Officer”--Offer held to be improper--Held; It almost seemed like closing an option for them by suggesting that a Gazetted Officer, who is Deputy Superintendent of Police was available and whether they would accept such an option. The requirement of Section 50, was clearly breached, if a strict and technical construction should be placed on the words used while sounding the option--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50.

       (H) Contraband--Sample--Two samples--Failure of taking two samples, by itself would not vitiate conviction, unless it is shown that any prejudice has been caused to accused by such action--|Narcotic Drugs and Psychotropic Substances Act, 1985, Section 55.

       (I) Contraband--Acquittal--Huge Recovery--Secret information--Interception of car--Recovery of charas and opium--Conducting of press meet--All the accused were acquitted for non compliance of not giving proper offer for making personal search--Public witness held not reliable--Non seizure of car involved--FIR was already prepared--Sealing, sampling and chain custodial safety at malkhana was seriously compromised by showing open parcel to press--Inspectors of raiding party not examined--|Narcotic Drugs and Psychotropic Substances Act, 1985, Sections 18 & 20. (Para 39)