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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ARVIND SINGH SANGWAN, J.
Rakesh Kumar - Appellant
Versus
State of Punjab - Respondent
CRA-S No.1303-SB of 2016 (O&M)
Decided On : 08-02-2018
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 22 - Summary of Acts and Sections: NDPS Act, 1985, Section 22 - The court discussed the procedural requirements under Section 50(1) of the NDPS Act and emphasized the need for clear communication of the accused's right to be searched in the presence of a Magistrate or a Gazetted Officer. The court also highlighted the importance of independent officers in conducting searches and the implications of breaching the provisions of Section 50(1). The judgment referenced the State of Rajasthan vs Parmanand and another and Ajay Malik and others vs State of U.T., Chandigarh cases to support its decision.
Fact of the Case:
The appellant was convicted under Section 22 of the NDPS Act for possession of narcotic contraband. The case involved the recovery of intoxicated powder from the appellant's possession during a police search. The appellant denied the allegations and claimed false implication.
Finding of the Court:
The court found merit in the appeal due to various discrepancies in the prosecution evidence. It highlighted the lack of explanation for the mention of FIR number in documents prepared prior to the registration of the FIR, discrepancies in the site plan, doubts regarding the presence of police officers at the spot, and issues related to the sealing and examination of the recovered samples. The court also emphasized the breach of procedural requirements under Section 50(1) of the NDPS Act.
Issues: The issues included the procedural irregularities in the search and seizure process, discrepancies in the preparation of documents, doubts regarding the presence of police officers at the spot, and the lack of adherence to the procedural requirements under Section 50(1) of the NDPS Act.
Ratio Decidendi: The court's decision was based on the discrepancies in the prosecution evidence, procedural irregularities, and the breach of procedural requirements under Section 50(1) of the NDPS Act. The court emphasized the importance of following the prescribed procedures and the need for clear communication of the accused's rights during searches.
Final Decision: The appeal was allowed, and the judgment of conviction and the order of sentence were set aside. The appellant, who was on bail, was granted relief.
ARVIND SINGH SANGWAN, J.
1. Challenge in this appeal is to the order dated 04.02.2016 passed by the Special Judge, Fatehgarh Sahib, convicting the appellant under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and sentencing him to undergo rigorous imprisonment for a period of 04 years and to pay a fine of Rs.50,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 06 months.
2. This appeal is being pursued by the High Court Legal Services Authority. As per the custody certificate dated 03.02.2018, filed in the Court today, the appellant/accused has undergone 11 months and 29 days of actual sentence out of 04 years rigorous imprisonment awarded by the trial Court and he is not involved in any other case.
3. Brief facts of the case are that FIR No.101 dated 20.09.2012 was registered against the appellant – Rakesh Kumar. As per the allegation in the FIR, the police party headed by ASI Deep Singh, on 20.09.2012 was present at a bridge of a canal in the area of Grain Market, Amloh in connection with patrolling and checking of the anti-social elements. The accused was seeing coming from the side of village Haripur on the road along the small canal at about 07:30 pm on foot. On seeing the police party, he became perturbed and tried to return but was apprehended by him along with his co-officials. On enquiry, he disclosed his name as Rakesh Kumar and ASI Deep Singh also disclosed his identity and informed him that he has suspicion that the accused is having some narcotic contraband in his possession and the police want to conduct personal search of the accused. The accused was also informed about his legal right that he can be searched either in presence of a Magistrate or a Gazetted Officer and if, accused so desire, the Magistrate or the Gazetted Officer can be called at the spot. On this, the accused reposed his confidence in ASI Deep Singh and then, he conducted search of the accused which led to recovery of a polythene bag from his right pocket of the pant and 240 gms of intoxicated powder was recovered and out of the same, 02 samples of 10 gms each were taken and separated and sealed and the left-over powder was found to be 220 gms on weighing and a separate bulk parcel was also prepared. All the 03 parcels were sealed by ASI Deep Singh with a seal 'DS' and sample of the parcel was also prepared and the same was taken in possession by preparing separate memos.
4. Thereafter, a ruqa (written complaint) was sent to Police Station for registration of the FIR through Constable Amritpal Singh and after registration of the FIR, further investigation was carried out and during course of the same, a rough site plan of the place of recovery was prepared with marginal notes and statement of witnesses were recorded. Later on, on receiving the report from the Forensic Science Laboratory, the challan under Section 173 of the Code of Criminal Procedure (in short 'Cr.P.C.') was submitted.
5. The trial Court framed charge under Section 22 of the NDPS Act vide order dated 16.07.2013.
6. Thereafter, the prosecution examined PW1 – HC Shashwant Kumar, tendered his affidavit Ex.PA regarding deposit of case property by SI Darshan Singh with him which were later handed over to Constable Simranjit Singh for depositing the same in FSL.
PW2 – SI Darshan Singh officiating S.H.O. stated that on receiving a ruqa Ex.PB sent by ASI Deep Singh through Constable Amritpal Singh, he registered an FIR (Ex.PC) and a copy of FIR along with ruqa was sent back to the place of recovery through Constable Amritpal Singh. Later on, the case property along with the accused, witnesses and sample chit Ex. PD were produced before him. He verified the fact and sealed the case property parcels and sample chits with his seal 'DS' and deposited the case property intact with MHC and put the accused in judicial custody. In cross-examination, this witness stated that he kept the seal wit
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