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2018 Supreme(P&H) 431
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ARVIND SINGH SANGWAN, J.
Nek Singh - Appellant
Versus
State of Haryana - Respondent
CRA-S-1968-SB of 2002
Decided On : 13-03-2018
For the Appellant :Ms. Swati Batra, Advocate as amicus curiae
For the Respondent: Ms. Harpreet Kaur, A.A.G., Haryana.
The main legal point established in the judgment is the importance of complying with procedural safeguards under the Narcotic Drugs and Psychotropic Substances Act, 1985, including the clear specification of the accused's right to be searched before a Magistrate or a Gazetted Officer, inventory preparation, and timely submission of sample parcels to FSL.
Headnote:
Narcotic Drugs - Violation of Procedural Safeguards - Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50, Section 52-A - The notice under Section 50 of the Act did not clearly specify the accused's right to be searched before a Magistrate or a Gazetted Officer. There was a clear violation of Section 52-A as no inventory was prepared, contraband was not produced before the Magistrate for verification, and no Form No. 29 was prepared. The investigation conducted by the arresting officer was found to be defective. The delay in sending the sample parcel to FSL was unexplained. The entire investigation was conducted by the same officer, which was held to be vitiated. The appellant was acquitted based on these grounds.
Fact of the Case:
The appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of poppy husk. The prosecution's case was based on the recovery of the contraband from the appellant's possession and subsequent investigation conducted by the arresting officer.
Finding of the Court:
The court found that there were multiple violations of procedural safeguards under the Act, including the failure to clearly specify the accused's right to be searched before a Magistrate or a Gazetted Officer, the absence of inventory preparation, and the unexplained delay in sending the sample parcel to FSL. The entire investigation conducted by the arresting officer was found to be defective, leading to the acquittal of the appellant.
Issues: The issues included the defective notice under Section 50, violation of Section 52-A regarding inventory preparation and contraband verification, unexplained delay in sending the sample parcel to FSL, and the conducting of the entire investigation by the arresting officer.
Ratio Decidendi: The court's decision was based on the multiple violations of procedural safeguards under the Act, including the failure to comply with the requirements of Section 50 and Section 52-A, as well as the defective investigation conducted by the arresting officer.
Final Decision: The appellant-convict was acquitted of the charges based on the violations of procedural safeguards and the defective investigation conducted by the arresting officer.
ARVIND SINGH SANGWAN, J.
1. Prayer in this appeal is for setting aside the judgment dated 21.11.2002, vide which the appellant was convicted under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') as well as the order of sentence dated 26.11.2002 vide which he was ordered to undergo rigorous imprisonment for a period of 2 years and 6 months and to pay a fine of Rs.10,000/-. In default of payment of fine, to further undergo rigorous imprisonment for a period of 6 months.
2. Brief facts of the case are that on 18.11.1997, ASI Atma Ram Along with police officials was present at Sanjay Chowk on G.T. Road, Panipat on patrol duty, when the appellant-accused was seen coming from Sanoli Road side, carrying a bag of green colour and on seeing the police party, he became perplexed and tried to run away. On suspicion, he was apprehended by the police party. Thereafter, on suspicion, he was served with a notice (Ex.PA) under Section 50 of the Act giving him an offer as to whether he wanted to be searched either by ASI Atma Ram or by some higher officer. The accused gave his consent vide memo Ex.PA/1 for his search before a senior Officer. The notice as well as the reply were duly signed by the accused-appellant and the notice was attested by the Investigating Officer. It is also stated in the FIR that by-chance DSP Partap Singh reached there along with his staff in a Govt. vehicle and then ASI disclosed the facts of case to DSP and on his written direction, he conducted the search of the bag of the accused and found that it was containing poppy husk which, on weighment, was found to be 19 kgs. approx. Out of which a sample of 250 grams was separated and sealed separately with the seal of 'AR' and was taken into police possession vide memo. Ex. PC which was attested by DSP by affixing his seal 'PS'. After sealing the sample, the seal was handed over to one Constable Mahabir. The accused could not produce any permit or license, then ASI sent ruqa (Ex.PF) to the police station, on the basis of which formal FIR (Ex.PF/1) was recorded. He also prepared the rough site plan (Ex.PG) with correct marginal notes and thereafter, recorded the statements of witnesses and arrested the accused. On completion of the investigation, the accused, witnesses and case property were produced before SI/SHO Shamsher Singh who verified the same and affixed his seal as 'SS' on both parcels and then on his direction, ASI deposited the case property with the MHC with seals intact.
3. On 24.11.1997, MHC Sat Pal Singh, handed over the sample parcel with seal intact to Constable Baljit Singh Jaglan, for depositing the same with the Director, FSL, Madhuban and the same was deposited on the same day and on receiving the report (Ex. PH) dated 24.03.1998 from the FSL, the challan was presented before the trial Court and, thereafter, vide order dated 25.08.1998, the accused was charge-sheeted under Section 15 of the Act.
4. The prosecution examined PW1-Mahabir Singh, a witness of the recovery, who deposed on the line of the version given in the FIR. PW2-SI/SHO Shamsher Singh, proved that the accused along with the case property was produced before him and on his direction, ASI deposited the case property with MHC. PW3-Baljit Singh Jaglan Constable stated that he delivered the special report to the higher officers. PW4- DSP Partap Singh, also stated on the line of the recovery effected from the appellant that when he reached near Sanjay Chowk, on G.T.Road, Panipat, on patrol duty, he met and directed ASI Atma Ram to check the bag carried by accused from which approximately 19 kgs of poppy husk was recovered. The same was taken in possession by the police vide memo Ex.PC and he attested the same vide his seal 'PS'. This witness further identified the case property as Ex.P1. PW-5 H.C. Satyapal, tendered his affidavit Ex.PD with regard to handing over the case property to PW Trilok for depositing the same with FSL. PW-6 Constable
