Narcotics – Search and Seizure – Mention of offence under a particular section of NDPS Act on the consent memo could not have been mentioned before the recovery had been effected – Accused acquitted
Narcotics – Search and Seizure – Discrepancy regarding handing over of seal after its use – Said discrepancy create doubts and shatters the case of the prosecution – Accused acquitted.
Narcotics – Case Property – Bag containing poppy husk when produced before the Trial Court was not having proper seal, was broken and was in illegible condition – It creates doubt about the authenticity of the case property – Accused acquitted.

Mr. Surinder Gupta, J. - This is appeal against the judgment of conviction dated 02.09.2003 and order of sentence date 04.09.2018 passed by Special Judge, Ferozepur, whereby the appellant has been convicted for the offence punishable under Section 15 of Narcotic Drugs and Psychotropic Substances Act, 1985(for short-NDPS Act) and sentenced to undergo rigorous imprisonment for four years and to pay a fine of 2000/- and in default of payment of fine to further undergo rigorous imprisonment for three months.

2. As per case of the prosecution, the police party headed by ASI Karnail Singh of Police Station Kui Khera, Sadar Fazilka was going for patrolling towards village Sajrana and on the way from bridge canal Kamalwala towards village Sajrana on kacha path, appellant was seen coming with a bag on his head. On seeing the police party, he felt perplexed and turned towards field having cotton crop and was apprehended on the basis of suspicion. He was asked to place the bag he was carrying on his head on the ground and Constable Balwinder Singh was sent to the village to call an independent witness. He brought Mahaja Ram Chowkidar, resident of village Kamalke, who was joined in the police party. The investigating officer apprised him about his suspicion that the bag carried by him contain some intoxicant and gave him option to get his search conducted before a Gazetted Officer, Illaqa Magistrate or from him(ASI Karnail Singh). Appellant opted to get his search conducted from Investigating Officer and his consent memo to this effect was prepared. On search, the bag was found containing poppy-husk, out of which two samples of 250 grams each were separated and remaining poppy-husk on weighment came to be 34 kg 500 grams. A separate parcel of remaining poppy-husk was also prepared. Ruqa was sent to the police station on the basis of which formal FIR No.222 dated 24.10.1997 was registered at Police Station Sadar Fazilka.

3. On presentation of challan, learned trial Court found a prima facie case against the appellant for the offence punishable under Section 15 of NDPS Act and he was charge-sheeted accordingly to which the appellant pleaded not guilty and claimed trial.

4. In support of its case, prosecution examined Constable Kulwant Singh as PW1, SI Harmel Singh as PW2, Head Constable Gurdial Singh as PW3 and Investigating Officer ASI Karnail Singh as PW4. After tendering report of Chemical Examiner, learned Addl. Public Prosecutor closed the prosecution evidence.

5. All the incriminating evidence was put to the appellant while recording his statement under Section 313 Code of Criminal Procedure which he denied and pleaded his false implication. He stated in his defence that no recovery was effected from him and he had been falsely implicated in this case.

6. Learned trial Court found the testimony of prosecution witnesses worthy of reliance, convicted and sentenced the appellant as detailed in opening para of this judgment.

7. Learned counsel for the appellant has argued that it is a case where the basic documents i.e. ruqa and FIR have not been proved. The investigating officer has nowhere stated that he sent the ruqa to the police station for registration of FIR. The most strange factor of this case is that the police even before searching the bag carried by the appellant and recording his consent memo, was aware that recovery of poppy-husk will be effected from the appellant and he will be booked for the offence punishable under Section 15 NDPS Act. This is clear on the perusal of the consent memo and other documents allegedly prepared at the spot which bears at the top the inscription in running hand that all the memos have been prepared for the offence punishable under Section 15 NDPS Act. FIR number also find mention in the memos, and the same could be explained by the prosecution by taking the plea that FIR No. had been received at the spot, as such, it was incorporated in memos in blank space left for recording FIR numbe