IMPORTANT POINT
Narcotics-Case Property-No sample was drawn by Magistrate – Seals were not opened by Magistrate, who simply recorded that they were found to be intact – Accused acquitted.
Narcotics-Case Property-Case property was returned to Investigating Officer and not to prosecution witness who had produced them before the Magistrate – Accused acquitted.
Narcotics – Personal Search-Contention that accused was given offer but he gave written consent for not being searched before Magistrate or Gazetted Officer – Accused acquitted.

AMOL RATTAN SINGH, J.

The appellant challenges the judgment of the learned Judge, Special Court, Hoshiarpur, dated June 04, 2015, by which he has been convicted for the commission of an offence punishable under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1885 (in short “the Act”) and thereafter sentenced to undergo 10 years rigorous imprisonment, along with a fine of Rs.1 lac to be paid by him, in default of which he has to further undergo rigorous imprisonment for 2 years.

2. The facts leading up to the conviction of the accused are that, as per the prosecution, on 03.05.2013, ASI Kulwinder Singh and Head Constable Gurdeep Singh, along with other police officials, are stated to have been patrolling near the Bus-Stand of village Badala Mahi, when, from the side of village Kathar, one clean shaven person is stated to have been seen coming, who on seeing the police party is stated to have turned away. On suspecting him (of the commission of an offence), the ASI apprehended him with the help of the remaining police party and on asking for his name, was told that he was Kulwinder Kumar, resident of Ward no.1 Sham Chorasi. ASI Kulwinder Singh is stated to have disclosed his identity to the appellant, giving therein his name and rank and also informing him that it was suspected that he was carrying some narcotic material with him, for which his search was to be conducted, and that he could get his search conducted either in the presence of a Magistrate or a gazetted officer, who could be called to spot. However, the appellant is stated to have 'reposed faith' in the ASI and is stated to have signed a statement, consenting that his search be conducted by the ASI.

3. Further as per the case of the prosecution, the Assistant Sub- Inspector tried to join witnesses from the public, with none ready to participate in the process, after which he is stated to have conducted the search of the appellant. From the right pocket of his pants, a plastic envelope was said to have been recovered, containing white powder. The appellant is stated to have told the police party that it was intoxicant powder, upon which two samples of 5 grams each are stated to have been drawn and weighed on an electronic scale, with the remaining powder found to be 160 grams.

Thus, a total of 170 grams of intoxicant powder is stated to have been recovered from the appellant.

4. Parcels of the samples as also of the 'bulk powder' were prepared by the ASI and sealed with his seal, bearing the impression 'KS'. A recovery memo, as also Form 29, are stated to have been filled up, with the specimen of the seal prepared separately. The seal was then handed over to HC Gurdeep Singh, with information (ruqa) sent to the police station, on the basis of which FIR no.63 was registered on the same date, i.e. 03.05.2013, at Police Station Bullowal (District Hoshiarpur).

The accused not having been able to produce any permit or license, he was arrested and a rough site plan prepared of the place of recovery.

5. Upon receipt of the report from the Forensic Science Laboratory, the salt shown to be recovered from the appellant was stated to be 'Diphenoxylate', though in the FIR it was stated to be 'Amphetamine'.

The report under Section 173 having been submitted to the trial Court, the appellant was charged with the commission of an offence punishable under Section 21 of the Act.

The following witnesses were examined by the prosecution:-

“PW-1, HC Gurdeep Singh

PW-2 PRHC Karnail Singh

PW-3 MHC Rajwinder Singh

PW-4 ASI Kulwinder Singh, Investigating Officer and

PW-5 Inspector Harneel Singh.”

The following documents were also exhibited :-

1. Consent memo, Ex.PA

2. CFSL Form Ex.PB;

3. Recovery memo Ex.PC;

4. Ruqa Ex.PD;

5. Site Plan Ex.PE

6. Arrest cum intimation memo Ex.PF;

7. Personal search memo Ex.PG

8. Entrustment memo Ex.PH;

9. Affidavit Ex.PJ;

10. Affidavit Ex.PK;

11. FIR Ex.P2;

12. Endorsement on Ruqa Ex.P3;

13. Application moved to the Duty Magistrat