2012 Supreme(P&H) 1642

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Jitendra Chauhan
Crl. Appeal No. 2391-SB of 2007
Lala
v.
State of Punjab
{Decided on 20/12/2012}

Headnote:Narcotic--Acquittal--Identification of accused--Benefit of doubt--An IPS officer in whose presence the entire search was supposedly conducted, could not even recognize the accused in court.

       Narcotic Drugs and Psychotropic Substances Act, S.15--Official Witness--Discrepancies in statements--A contradiction or defect in the statement of police witness takes the complexion of material deficiencies.

       Narcotic--Chance Recovery--Recovery from tractor trolley--Section 42 of the Act was not attracted as the search was conducted from a tractor trolley which was in transit in a public place.

       (A) Narcotic Drugs and Psychotropic Substances Act, S.15--Chance Recovery--Acquittal--Identification of accused--Benefit of doubt--Member of police party contended to have personal knowledge of accused--Not believed--Held; time of occurrence was 8 p.m.--Not the case of prosecution that accused ran away after torch light was flashed on their faces--No efforts made by police to arrest them immediately--They were arrested after 10 days--Benefit of doubt extended to accused.

       For obvious reasons, criminals would not wait for their faces to be identified in flash lights or torches before to be identified in flash lights or torches before making good their escape--They would jump and run away at the first available moment--In the present case, even believing that two persons did run away from the spot, they must have ran away in all probability even before the tractor trolley came to a halt (keeping in mind that it was a police party of 7 officials which signaled the tractor to stop and not a solitary police man trying to stop a tractor, making it almost impossible for the police party to have recognized them. (Para 18)

       (B) Narcotic Drugs and Psychotropic Substances Act, S.15--Acquittal--Identification of accused--Benefit of doubt--An IPS officer in whose presence the entire search was supposedly conducted, could not even recognize the accused in court--The evidence of a senior police officer, who is a member of the distinguished police service, whereby he failed to recognize the accused who remained in his presence, casts a serious doubt on the prosecution veracity--Benefit of doubt extended to accused. (Para 29)

       (C) Narcotic Drugs and Psychotropic Substances Act, S.42 and 43--Chance Recovery--Recovery from tractor trolley--Held; That in the present case, section 42 of the Act was not attracted as the search was conducted from a tractor trolley which was in transit in a public place--Thus, the question of compliance or non-compliance of section 42 of the Act is also consequential. (Para 26)

       (D) Narcotic Drugs and Psychotropic Substances Act, S.42 and 43--Search and Seizure--Provisions of section 42 of the Act will be applicable to search of a conveyance only when it is at rest and can be said to be a part of a dwelling house or enclosed place--It is only in such a case that special reasons have to be recorded by the authorized officer if he wants to conduct the search of the same between sunset and sunrise without authorization from the competent officer--However, where the search of conveyance is to be conducted in a public place or when it is in transit, section 43 of the Act will come into play for which the only requirement is that he should be satisfied that the conveyance which is sought to be searched, is containing suspicious material. (Para 26)

       (E) Narcotic Drugs and Psychotropic Substances Act, S.50--Personal Search--Recovery from tractor trolley--The only extension of section 50 of the Act can be made in cases where along with the personal/physical search of the suspect, any bag or container, of which the suspect can be said to be having conscious possession, is also to be conducted--In view of admitted case from both side, the question whether or not section 50 was complied with or not becomes insignificant and is thus of no help to the Appellants. (Para 24)

       (F) Narcotic Drugs and Psychotropic Substances Act, S.15--Independent Witness--Non-joining of--Acquittal--Police remained on the spot for about five hours and many people passed by the site--There is no explanation as to why the Police could not involve any person from the public at the time of recovery. (Para 27)

       (G) Narcotic Drugs and Psychotropic Substances Act, S.15--Official Witness--Discrepancies in statements--A contradiction or defect in the statement of police witness takes the complexion of material deficiencies--This is more so because NDPS Act imposes strict liability on offenders--The guilt of anyone accused of a crime under NDPS Act thus, has to be established by scanning the prosecution evidence in the manner of a microscopic examination. (Para 28)