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2017 Supreme(P&H) 1526
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ARVIND SINGH SANGWAN, J.
Raju Juneja - Appellant
Versus
State of Punjab - Respondent
CRA-S-1147-SB-2012 (O&M)
Decided On : 23-09-2017
Advocate Appeared:
For the Appellant :Mr. Sanyam Malhotra, Advocate
For the Respondent: Mr. K.S. Aulakh, DAG
The judgment establishes that strict compliance with the provisions of Section 50(1) of the NDPS Act is necessary, and procedural irregularities can render a conviction unsustainable, especially when considering the actual sentence served by the appellant.
Headnote:
NDPS Act - Violation of Section 50 - Summary
Fact of the Case:
The appellant was convicted under Section 22(c) of the NDPS Act for possession of intoxicant powder. The prosecution evidence included the recovery of the contraband and the appellant's denial of the charges during trial. The trial court convicted and sentenced the appellant to 10 years rigorous imprisonment and a fine.
Finding of the Court:
The court found a violation of Section 50 of the NDPS Act, as the accused was not informed of his right to be searched before a Magistrate or Gazetted Officer, and the manner in which the samples were sealed and sent to FSL did not comply with the procedure laid down under the Act/Rules. Despite this, considering the appellant's 7 years of actual sentence served out of 10, the court held the conviction as unsustainable and allowed the appeal, setting aside the judgment of conviction and order of sentence.
Issues: Violation of Section 50 of the NDPS Act, compliance with the procedure for sealing and sending samples to FSL, sustainability of conviction in light of the appellant's actual sentence served.
Ratio Decidendi: The court held that the violation of Section 50 and the procedural irregularities in sealing and sending samples rendered the conviction unsustainable, especially considering the appellant's actual sentence served.
Final Decision: The appeal was allowed, and the judgment of conviction and order of sentence were set aside. The appellant was ordered to be released forthwith.
ARVIND SINGH SANGWAN , J.
1. Custody certificate of the appellant is taken on record.
2. The accused-appellant Raju Juneja has faced the trial in FIR No.128 dated 14.10.2010 under Section 22 of the NDPS Act, registered at Police Station Division No.3, Jalandhar.
3. The brief facts of the case are that on 14.10.2010, ASI Subhash Chander, Police Station Division No.3, alongwith the officials was present at Kishanpur Chowk, Jalandhar where accused Raju Juneja was seen coming on a motorcycle No. PB-06-C-8347 coming from the side of Lamma Village. On seeing the police party, he tried to turn back and ran away, but on suspicion he was nabbed. He was interrogated and the ASI, on suspicion that he was carrying some intoxicant, searched him. The accused was apprised of his right to opt for his search before some Magistrate or Gazetted Office, however, he reposed confidence in him and opted to be searched by him as per the consent memo (Ex. P-1) prepared at the spot. Thereafter, the personal search of the accused was conducted by the said ASI, which led to the recovery of 260 gms of intoxicant powder wrapped in a polythene bag kept in the right pocket of his trouser. Two samples of 5 gms each was separated and two separate parcels were prepared and the residue was put in another third container and thereafter the sample was also sealed with mark SC and the third parcel was also sealed. The seal was thereafter handed over to the HC Ramesh Kumar. Motorcycle was also taken in possession. Thereafter, the FIR was registered under Section 22 of the Narcotic Drugs and Psychotropic Substances Act (in short 'NDPS'). Later on, the investigation was completed and report under Section 173 Cr.P.C. was submitted before the Court and charge under Section 22(c) of the Act was framed against the appellant-accused.
4. In the prosecution evidence, PW-1 Gurinder Singh-constable was examined, who tendered his affidavit Ex.PW-1/A. This affidavit relates to depositing of the sample. In cross-examination, this witness stated that he has only taken the samples to FSL.
PW-2 ASI Subhash Chander, the Investigating Officer deposed on the line of the contents of the FIR. This witness proved that the samples were sealed and a chit Ex.P-2 pasted on CFSL form Ex.P-3 and the seal was handed over to HC Ramesh Kumar. The case property was taken into possession vide memo Ex.P-4 and the motorcycle was taken in possession vide memo Ex.P-5. This witness further stated that he has sent ruqa Ex.P-6 to the police station on the basis of which FIR Ex.P-7 was registered against the accused by ASI Surjit Singh. This witness further proved the site plan Ex.P-8, memo of arrest-cum-intimation memo Ex.P-9 and disclosure statement Ex.P-11. This witness further stated that he prepared the sample of his seal on chit Ex.P12 which was pasted on CFSL form and on 15.10.2010, he had taken the case property from MHC and it was produced before the Judicial Magistrate alongwith the accused by moving applications Ex.P-13 and Ex.P-14, which were authenticated by the Judicial Magistrate vide Ex.P-13/A and Ex.P-14/A. Thereafter, the case property was redeposited with MHC Nirmal Singh and the report of Chemical Examiner was proved as Ex.P-15. In cross-examination, this witness stated that they were five members of the police party and before sending the ruqa, only a consent memo was prepared, again stated that recovery memo was also prepared before that and remaining documents were prepared after sending the intimation. This witness stated that before conducting the personal search, an offer was given to the accused.
PW-3 HC Ramesh Kumar stated that he was one of the member of the police party alongwith ASI Subhash Chander and in his presence, the accused has reposed confidence in ASI Subhash Chander and opted his search vide consent memo Ex.P-1 and thereafter ASI Subhash Chander conducted the search of the accused in his presence. Thereafter, the other formalities were done as stated by PW-2 ASI
