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IN THE HIGH COURT OF PUNJAB AND HARYANA
RAJIV SHARMA, HARINDER SINGH SIDHU, JJ.
Baljinder Singh - Appellant
Vs.
State Of Punjab - Respondent
Criminal Appeal (D) No. 917, 923 of 2011
Decided on : 22-01-2019
(i) The Director, Directorate of Enforcement/ Additional/ Joint/Deputy or its delegates are directed to register cases under Money Laundering Act, against all the convicts, who are convicted under section(s) 15, 16, 17, 19, 20, 21, 22, 23, 24, 25-A, 27-A and 29 of the NDPS Act, 1985 throughout the State of Punjab within a period of three months from today to curb the illegal transportation of narcotic drugs and psychotropic substances and also to prevent money laundering.
(ii) The Principal Secretary (Home) to the Government of Punjab is also directed to issue directions to all the Investigating Officers throughout the State of Punjab to register cases against the person(s) under section 27-A of the Narcotic Drugs and Psychotropic Substances Act, 1985, who are involved in financing, directly or indirectly in any of the activities specified under the Act or harbours any person engaged in any of the activities as per the Act, to reduce the menace of drugs abuse in the society, immediately--Prevention of Money Laundering Act, 2002, S.17. (Para 40)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, S.15--Search and Seizure--Complainant and Investigating Officer was same person--Prejudice to accused--Whether the investigation carried with the complainant has vitiated the trial or not will depend upon the facts and circumstances of each case--The appellants had ample opportunity to cross-examine the I.O. but he was not cross-examined on this aspect by the appellants--Thus it has neither resulted in miscarriage or cause any prejudice to the appellants. (Para 31)
In the instant case, PW-6 Rakesh Kumar was the complainant and has investigated the matter. He had prepared the samples and deposited with the SHO. The appellants have not taken the plea of being biased by the investigation carried out PW-6 Rakesh Kumar before the trial Court. They had an opportunity to take the objection when they were examined under Section 313 Cr.P.C. and also at the time of arguments were made during the trial. There should have been sufficient nexus either established or probabilized, between the conviction and the irregularity/illegality in the investigation. The appellants were not prejudiced in the matter of their defence during the trial. They were given ample opportunity to defend themselves and also adducing evidence in support of their case. (Para 30)
(C) Narcotic Drugs and Psychotropic Substances Act, 1985, S.50--Personal Search--Joint Notice--Both the accused were given joint notice, which is in contravention of mandatory provisions of S.50 NDPS Act--Accused acquitted.
(D) Narcotic Drugs and Psychotropic Substances Act, 1985--Mandatory Directions--To eradicate the menace of drugs in State of Punjab, certain mandatory directions issued and also directed to strictly enforce Section 71 of the NDPS Act.
1. The State Government is directed to launch special awareness drives to make the people aware of the illeffects of drugs on the society. The Deputy Commissioner of the district shall be the Nodal Officer to make the citizens aware of the ill-effects of the drugs and controlling the same. The State Government shall make sufficient provisions for awareness drives through electronic media, print media, internet, radio television etc.
2. The State Government is directed to provide latest kits to the Investigating Officers to investigate the matters under the Opium Act, NDPS Act and other allied Acts and also to hold refresher course periodically to apprise the police personnel the procedure to be adopted while conducting investigation under the NDPS Act. The State of Punjab is directed to issue direction to the police department that complainant should not be I.O. to obviate bias.
3. The State Government through the Director General of Police is directed to register cases against the kingpins under the Prevention of Money Laundering Act, 2002 at the time of lodging the FIR under the NDPS Act and Opium Act and also, if necessary, by attaching their properties provisionally relating to supply of poppy straw, coca plant and coca leaves, prepared opium, opium poppy and opium, opium by cultivator, cannabis plant and cannabis, manufactured drugs and preparation and psychotropic substances including artificial drugs etc.
4. Since the drugs menace has attained alarming proportion, the State Government is directed to establish Rehabilitation Centers in each district of the State within a period of six months from today. The rehabilitation centers shall provide all the basic necessities to the inmates including boarding, lodging, counseling etc.
5. The State Government is directed to appoint one Psychiatrist for counseling in each Rehabilitation Center. The Counselor appointed in rehabilitation center shall also visit all the schools falling in his jurisdiction advising the students about the ill-effects of drugs.
6. All the educational institutions i.e. government run, government aided, private schools, minority institutions, are directed to appoint the senior-most teacher as the Nodal Officer to counsel the students on every Friday of the month about the ill-effects of drugs. In case, he finds any drugs abuse or symptoms, he shall be at liberty to summon the parents of students. The parents will be sensitized against the drugs abuse in parent-teacher meetings.
7. The State Government is directed to ensure to post one plain-clothes policeman from 8 AM to 6 PM around all the educational institutions to nab the drugs peddlers and kingpins. The local intelligence units are directed to keep a close watch on the shops including Dhabas, tuck shops, Khokas, tea stalls to ensure that the owners thereof are not permitted to indulge in the sale of drugs etc.
8. The Drugs Inspector while raiding the factories, industries, medical shops shall be accompanied by a person not below the rank of the Assistant Commissioner of Police including the Gazetted Officer from the Food and Supplies Department.
9. The Assistant Commissioner of Police of the concerned district shall personally monitor all the cases registered under the Opium Act and the NDPS Act, 1985 to plug the loopholes during the course of enquiry and investigation to increase the conviction rate.
10. The Executive Magistrates and the Gazetted officers throughout the State shall be informed about their duties to be discharged under the NDPS Act more particularly, under Section 50 and the latest law laid down by the Hon`ble Supreme Court of India and by this Court from time to time.
11. The Police Officers shall ensure that no minor is served any drugs, alcoholic beverages in any medical shops, bars, restaurants and through vend. No vend shall supply/sell the liquor to any minor. In the eventuality of liquor being supplied/sold to a minor, the licence issued for bar/vend shall be cancelled after putting them to notice. This direction shall be complied with by the police force as well as by the Excise Department. The concerned Assistant Commissioner of Police shall visit every medical shop at least within 24 hours to check the supply of drugs to any minor.
12. The Director General of Police, State of Punjab, is directed to revamp, restructure strengthen special task force.
13. The District Narcotics Cells constituted by the State of Punjab shall immediately undertake the following tasks:-
i). Each Anti Narcotics Cell is directed to identify such area in the district in which there are complaints of sale of drugs or where the drugs addicts are found operating based on these information, the local police shall immediately take necessary steps to bust/apprehend such peddlers who are active in drugs trafficking.
ii). As a further action, such potential suppliers shall also be identified by Anti Narcotics Cell as well as local police and action as per law should be taken against them.
iii). The Anti Narcotic Cell shall take action against the abettors and conspirators, aiding the sale of drugs as per Section 29 of the NDPS Act.
iv). Each Police station throughout State of Punjab shall prepare database/record of all individuals, who were previously involved in NDPS Act cases or have pending cases registered against them under NDPS Act and requisite surveillance will be undertaken qua on them so that substantive as well as preventive actions can be taken against them.
v). The Director, Education is directed to provide the list of vulnerable Government schools, Government aided Schools, Public Schools and Minority Schools for monitoring and curbing availability and peddling the drugs and narcotics substances among school going children to the police authorities. Local Police shall take proactive and ensure Zero Tolerance on this issue. All out efforts shall be made to identify such elements and in case any peddler is identified, immediate action shall be taken against him.
vi). The Anti Narcotic Cell shall take action against unscrupulous elements who are involved in sale of Pharmaceutical product without prescription which is to be used as a narcotics substance.
vii). There shall be regular training for capacity building and improving the investigating as well as intelligence collection skills of the investigating officer with regard to detection and investigation of NDPS Act related cases.
viii). The emphasis shall also be on the public schools. The Director Higher Education and Director School Education shall also visit the public schools. The free access shall be given to the Management to the School to the high ranking officers.
14. The State Government is directed to increase public awareness in the society. The Police shall be sensitized qua street peddlers. The Police shall be trained to deal with peddlers.
15. The State Government is directed to develop special, mobile, anti-peddling squads of police with jurisdiction of all over the cities and adjoining areas.
16. The State Government through the Secretary, Education is directed to include a mandatory and comprehensive chapter on drug abuse and illicit trafficking and its socio-economic cost to self, society and the country in the syllabus for 10+1 and 10+2 students.
17. The local police is directed to pay special attention to areas surrounding schools including Government schools, Government aided Schools, Public Schools and Minority Schools, colleges, Universities and coaching Centres in their efforts to tackle drug peddlers.
18. The School Management, Principals and Teachers shall be encouraged sensitized to look out for peddlers in their vicinity and report them to police immediately.
19. All the schools throughout of State Government including Government, Government aided, minority institutions, public schools, Universities, colleges, Polytechnic colleges and Coaching Centres are directed to constitute anti-drug clubs to promote a drug free life among its members and also in the institution.
20. The State Government is also directed to sensitize the Prison staff in detecting and seizing drugs in prisons.
21. The Prisons shall be equipped with sniffer dogs to check the visitors and packages for drugs in the entry and exiting points. All the addicts within the prison including open jail shall be registered and compulsorily sent for de-addiction.
22. Every prisoner entering in the prison shall be tested for addiction and shall be de-addicted if he is found to be addicted.
23. All the prisoners who are arrested in crimes before their production in a court by an arresting agency shall be examined by the doctor and Doctor shall record their history or symptoms, if any of drug abuse. Wherever an arrested person shows signs of addiction, the police should take him to a doctor or a hospital to determine, if he is an addict, and if so, take measures to treat him.
24. There should be coordination amongst the school authorities, police authorities and hospitals/rehabilitation centres.
25. The State is directed to strictly enforce Section 71 of the NDPS Act. (Para 46)
Certainly. Based on the provided legal document, here are the key points relevant to your query:
The investigation and prosecution under the NDPS Act must strictly comply with the provisions of Section 50, which mandates individual and clear communication of the right to be searched before a gazetted officer or magistrate. Any joint or ambiguous notices may invalidate the search and subsequent proceedings (!) (!) .
The investigation must be conducted by an officer who is impartial and separate from the informant or complainant to ensure fairness and avoid bias. Investigation by the same person who lodged the FIR is permissible only if there is no indication of bias or prejudice, and the investigation process remains fair and unbiased (!) (!) .
The evidence and investigation process should be transparent, with proper documentation, sealing, and handling of samples, seals, and case property. Any irregularities, such as improper sealing or failure to follow prescribed procedures, can affect the validity of the case (!) (!) .
The investigation must be thorough, impartial, and in accordance with legal formalities, including proper exercise of powers under the NDPS Act and other relevant laws. Irregularities or illegalities in investigation, unless they cause prejudice to the accused, do not automatically invalidate the trial (!) (!) .
The trial process must be fair, with active judicial participation, proper recording of evidence, and the Court’s power to examine witnesses or admit additional evidence to uncover the truth and prevent miscarriage of justice (!) (!) .
The enforcement agencies are directed to undertake comprehensive measures including awareness drives, establishing rehabilitation centers, appointing nodal officers, and conducting regular training to effectively combat drug trafficking and related crimes (!) (!) .
The authorities are also instructed to follow strict procedural safeguards, especially in relation to search and seizure, to ensure the rights of the accused are protected, and any violation can lead to acquittal or dismissal of cases (!) (!) .
The investigation and prosecution must be free from undue influence or bias, and the investigation should not be conducted by the same officer who lodged the FIR unless there is no prejudice or bias involved. Proper procedural conduct and transparency are essential for a fair trial (!) (!) .
The legal framework emphasizes the importance of a fair trial, the active role of courts in ensuring justice, and the necessity of adherence to procedural safeguards to uphold the integrity of the judicial process (!) (!) .
The authorities are mandated to take proactive steps in identifying, investigating, and prosecuting drug peddlers, kingpins, and those involved in financing drug trafficking, including cases under the Prevention of Money Laundering Act, to effectively curb the menace (!) (!) .
Please let me know if you need further clarification or assistance with a specific aspect of this legal document.
RAJIV SHARMA, J.
1. Since common questions of law and facts are involved in both these appeals, therefore these are taken up together and disposed of by a common judgment.
2. These appeals have been instituted against the judgment and order dated 08.09.2011 rendered by the learned Judge, Special Court, Patiala, in Sessions Case No.11T/17.11.2009/11 whereby the appellants were charged with and tried for offences punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “NDPS Act” for the sake of brevity). The appellants were convicted and sentenced to undergo rigorous imprisonment for a period 12 years and to pay a fine of Rs.2 lacs each and in default of payment of fine, they were ordered to further undergo rigorous imprisonment for a period of two years, for the offence punishable under Section 15 of the NDPS Act.
3. The case of the prosecution in a nutshell is that on 19.08.2009 ASI Rakesh Kumar along with other police officials in connection with patrolling duty were present at Sirhind bye-pass, Rajpura. Lachhman Singh son of Sarwan Singh came on the spot. When Rakesh Kumar was talking with Lachhman Singh, a Qualis bearing registration no.PB-13-D-7000 was seen coming from Ambala side. On seeing the police party, the driver of the vehicle tried to reverse the vehicle. On suspicion, the vehicle was stopped. One lady was sitting with the driver. On enquiry the driver and passenger disclosed their identities. ASI Rakesh Kumar suspected them to be carrying some contraband in the bags lying in the vehicle. He wanted to search them. He apprised the accused of their right to get the search conducted in the presence of Magistrate or gazetted Police Officer. However accused reposed confidence in him. Joint consent statement of accused was reduced into writing. On search, 7 bags containing poppy husk were recovered. Two samples of 250 grams each from each bag were separated and the residual poppy husk of each bag weighed 34 kgs. All the sample parcels and bulk parcels were sealed with the seals bearing impression ‘RK’. Specimen seal was prepared and the seal after use was handed over to HC Malwinder Singh. The case property was taken into possession. Ruqa was sent to the police station, on the basis of which FIR was registered. The case property was deposited in the Malkhana. On receipt of chemical report and after completing all the codal formalities, challan was put up in Court against the accused.
4. Prosecution examined a number of witnesses. The statement of appellants were also recorded under Section 313 Cr.P.C. They have denied the case of the prosecution. The appellants were convicted and sentenced as noticed hereinabove. Hence these appeals.
5. Learned counsel appearing for the appellants have vehemently argued that the prosecution has failed to prove the case against the appellants.
6. Learned counsel appearing on behalf of the State has supported the judgment and order dated 08.09.2011.
7. We have heard learned counsel for the parties and have gone through the judgment and record very carefully.
8. Pw-1 HC Udham Singh deposed that he was posted in Police Post Bus Stand, Rajpura. He tendered his evidence by filing his affidavit Ex.PX. According to him, he took the case property on 24.08.2009. The case property was deposited on the same day.
9. Pw-2 HC Sukhdev Singh tendered his evidence by filing his affidavit Ex.PA. He deposed that the case property was deposited with him by the Investigating Officer on the direction of SHO at about 10.15 P.M. The case property was in seven bags apart from 14 sample parcels and one Qualis car, jamatalashi, i.e. currenty notes and one mobile. The case property was sent on the next day for producing it before the court and on 21.08.2009 it was deposited in Judicial Malkhana. On 24.08.2009 samples were sent to the Chemical Examiner. He admitted that seven sample parcels remained with him from 19.08.2009 to 24.08.2009. He handed over t
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