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2018 Supreme(P&H) 1851
IN THE HIGH COURT OF PUNJAB AND HARYANA
RAJ MOHAN SINGH, J.
JAGDISH SINGH @ THANDU – Appellant
Versus
STATE OF PUNJAB – Respondent
CRA-S No. 4059-SB of 2016
Decided on : 17-02-2018
Advocate Appeared:
For the Appellant :Jagdish Rai, Advocate
For the Respondent: Rahul Rathore, DAG, Punjab
Headnote:
NDPS Act - Conviction Appeal - Section 22, 22(B) - Summary of Acts and Sections: NDPS Act, Section 22, Section 22(B) - The court found that the trial was vitiated due to the absence of a charge for the intoxicant powder and a material discrepancy in the number of intoxicant capsules. It emphasized the individual communication of the right to be searched before the Magistrate or Gazetted Officer and the requirement for fair and impartial investigation. The court also highlighted the non-compliance with mandatory provisions of Sections 50 and 52-A of the NDPS Act.
Fact of the Case:
The appellant appealed against the judgment of conviction and order of sentence under Section 22 and Section 22(B) of the NDPS Act. The prosecution alleged that the appellant was found in conscious possession of intoxicant capsules and powder, leading to his arrest and subsequent trial.
Finding of the Court:
The court found the trial to be vitiated due to the absence of a charge for the intoxicant powder and a material discrepancy in the number of intoxicant capsules. It emphasized the individual communication of the right to be searched before the Magistrate or Gazetted Officer and the requirement for fair and impartial investigation. The court also highlighted the non-compliance with mandatory provisions of Sections 50 and 52-A of the NDPS Act.
Issues: The issues included the absence of a charge for the intoxicant powder, discrepancy in the number of intoxicant capsules, individual communication of the right to be searched, fair and impartial investigation, and non-compliance with mandatory provisions of Sections 50 and 52-A of the NDPS Act.
Ratio Decidendi: The court's decision was influenced by the requirement for fair and impartial investigation, individual communication of the right to be searched before the Magistrate or Gazetted Officer, and the non-compliance with mandatory provisions of Sections 50 and 52-A of the NDPS Act.
Final Decision: The court acquitted the appellant from the charges and allowed the appeal, setting the appellant free forthwith.
RAJ MOHAN SINGH, J.
1. Appellant has preferred this appeal against the judgment of conviction and order of sentence dated 27.09.2016 passed by Judge Special Court, Patiala, whereby he was convicted for the offence under Section 22 of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of 10 years along with fine of Rs. 1,00,000/-. In default of payment of fine, he has to further undergo rigorous imprisonment for a period of 2 years. He was also convicted for the offence under Section 22(B) of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of 3 years along with fine of Rs. 5000/-. In default of payment of fine, he has to further undergo rigorous imprisonment for a period of 6 months. Both the sentences were ordered to run concurrently.
2. Prosecution story started with the allegations that on 21.04.2013, ASI Parkash Masih posted in Police Station Tripuri, Patiala along with his officials was on patrolling duty for search of bad elements. When the police party was present in the area of Green Park Chowk, one Manjit Singh came there and started talking with ASI Parkash Masih. In the meanwhile, one person was seeing coming from the side of village Jhil. On seeing the police party, he tried to retract his steps and turn back. On suspicion, he was apprehended with the help of companions. On being asked, he disclosed his name as Jagdish Singh @ Thandu. ASI Parkash Masih disclosed his identity to him and told him that he was having suspicion of carrying some contraband. He was also informed about his right to be searched before the Magistrate/Gazetted Officer. Jagdish Singh @ Thandu reposed his confidence in ASI Parkash Masih and his consent was recorded which was signed by the accused. On personal search of the accused i.e. from the right pocket of his trouser, polythene bag containing capsules of turquoise colour were recovered which were 160 in number. Capsules were having SPM-PRX inscribed thereon. Two samples of 10 capsules each were prepared and the remaining 140 capsules were put in separate container. Parcels were prepared which were sealed with the seal of ASI Parkash Masih bearing impression PM. From the left pocket of the accused, intoxicant powder was recovered. Two samples of 10 grams each were separated and the remaining powder was also separated in different parcel. Parcels were also sealed with the seal of ASI Parkash Masih with an impression of PM. Sample seals were separately prepared. Recovery articles were taken into police possession vide separate memo. Seal after use was handed over to Manjit Singh (witness). From the personal search of the accused, a mobile phone Micromax and Rs. 200/- currency notes were recovered from his shirt. Recovery articles were also taken into police possession. It was also revealed that left arm of the accused was broken and he had tied up a bandage. On the basis of ruqa sent to the police, FIR came to be registered. Thereafter, ASI Parkash Masih proceeded to prepare site plan and the accused was arrested. Report under Section 57 of the NDPS Act was prepared and was sent from the spot. The case property was produced before SHO/SI Kulwant Singh who verified the same and put his seal bearing impressions KS on the parcels and on the specimen seals. Thereafter, SHO deposited the case property with MHC Bishamber Singh. On 22.04.2013, the case property was produced before the Judicial Magistrate First Class, Patiala. On 23.04.2013, sample parcel of intoxicant powder was sent to Chemical Examiner through HC Jaspal Singh. One sample parcel of 10 intoxicant capsules was sent through HC Jaspal Singh to Chemical Examiner firstly on 30.04.2013 and secondly on 02.05.2013, when on earlier occasion, it was returned with some objections of rectification. On analysis, the powder was found containing diphenoxylate vide report dated 03.08.2013. Vide report dated 27.11.2013, the average weight of 656 mg per capsule was reported in respect of capsules.
