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2019 Supreme(P&H) 919
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Mahabir Singh Sindhu, J.
Kulwinder Singh @ Kala - Appellant
Vs.
State Of Punjab - Respondent
Criminal Appeal (S) No. 1896 of 2013
Decided On : 20-08-2019
H.S. Jagat, Adv., V.G. Jauhar, Adv.
The main legal point established in the judgment is the mandatory nature of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, emphasizing the need for strict compliance and clear communication of the right to be searched, as well as the consequences of non-compliance leading to a doubtful recovery.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Non-compliance of Section 50 and Violation of Section 52 A - [Narcotic Drugs and Psychotropic Substances Act] - [Section 22] - [Summary of Acts and Sections: The court discussed the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the violation of Section 52 A, emphasizing the strict compliance required for recovery of contraband. The court highlighted the legal principles established by the Supreme Court in Vijaysinh Chandubhai Jadeja v. State of Gujarat and State of Rajasthan v. Parmanand, emphasizing the mandatory nature of Section 50 and the need for clear and unambiguous communication of the right to be searched. The court also emphasized the requirement of strict compliance with the provisions and the consequences of non-compliance, leading to a doubtful recovery. The court found non-compliance of Section 50 and violation of Section 52 A, coupled with an unexplained delay in sending samples to the FSL, resulting in a case of doubtful recovery, leading to the acquittal of the appellant.
Fact of the Case:
The appellant was convicted and sentenced under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985, for possession of contraband. The prosecution alleged that the contraband was recovered from the appellant's possession after a personal search. The appellant claimed innocence and raised the plea of false implication due to enmity with a police officer. The defense witnesses were examined, and the trial court found the appellant guilty and sentenced him to 10 years of rigorous imprisonment and a fine. The appellant filed an appeal against the judgment and order of conviction.
Finding of the Court:
The court found non-compliance of Section 50 and violation of Section 52 A of the Narcotic Drugs and Psychotropic Substances Act, leading to a doubtful recovery. The court emphasized the mandatory nature of Section 50 and the need for strict compliance, citing relevant legal principles established by the Supreme Court. The court also highlighted the consequences of non-compliance, leading to the acquittal of the appellant.
Issues: The issues revolved around the compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, the violation of Section 52 A, and the consequences of non-compliance on the recovery of contraband. The court also addressed the delay in sending samples to the FSL and the lack of proof of safe custody of the seal, leading to a case of doubtful recovery.
Ratio Decidendi: The court emphasized the mandatory nature of Section 50 and the need for clear and unambiguous communication of the right to be searched. The court also highlighted the requirement of strict compliance with the provisions and the consequences of non-compliance, leading to a doubtful recovery and the acquittal of the appellant.
Final Decision: The appeal was allowed, and the impugned judgment of conviction and order of sentence were set aside. The appellant was acquitted of the charges and ordered to be released from custody forthwith.
JUDGMENT :
Mahabir Singh Sindhu, J.
Present appeal has been filed against the impugned judgment and order dated 19.02.2013 passed by learned Additional Sessions Judgecum-Judge Special Court, Rupnagar, for short 'Special Court', whereby the appellant was convicted and sentenced under Section 22 (c) of the Narcotic Drugs and Psychotropic Substances Act,1985, for short 'the Act', to undergo rigorous imprisonment for a period of 10 years and to pay fine of Rs.1,00,000/- with a default clause to further undergo imprisonment for 2 years.
2. In brief, the prosecution case is that on 11.10.2010, SI Nirmal Singh (PW4), CIA Staff, Ropar, along with other police officials were going from Bela Chowk to Khairabad in connection with checking of suspected persons. At about 5.00 p.m., when they reached near T-point of Village Shampura, a motorcycle, on which three persons were riding, was seen coming from opposite direction. Upon noticing the police officials, they tried to turn back, but on suspicion, all three were apprehended and on enquiry, they disclosed their names as Balwinder Singh, Kulwinder Singh and Ranjit Singh. PW4 introduced himself and told that there is a suspicion of some contraband in their possession, therefore, they are to be searched. He offered them "whether they want to be searched by him or in the presence of some Gazetted Officer or any Magistrate, and they have a legal right." Appellant along with other co-accused reposed confidence with PW4 and stated that he can conduct the search. Upon which separate consent memos were prepared, which were duly signed by all three accused as well as attesting witnesses. From personal search of appellant,20 packets of Phenotil tablets containing 100 tablets in each packet (total 2000 tablets), were recovered from his right pocket of the trouser; whereas a recovery of 140 loose capsules of Parvonspas was effected from co-convict Ranjit Singh from his right pocket of the trouser. Nothing was recovered from accused Balwinder Singh. Two samples from each of the contraband recovered at the instance of present appellant as well as co-convict Ranjit Singh were taken separately and put into separate parcels. All the parcels along with the contraband were sealed with the impression 'NS' and were taken into possession vide recovery Memo. Ex.PW4/A. Seal after use was handed over to HC Shingara Singh, No. 102, CIA Staff Ropar(PW-3). Thereafter, Ruqa Ex.PW4/B was sent to the police station, on the basis of which formal FIR, Ex.PW4/C was registered by ASI Shingara Singh, PS City Rupnagar under Section 22 of the Act and Section 27 of the Drugs and Cosmetics Act,1940, for short 'Act of 1940'. A rough site plan Ex.PW4/E of the place of recovery was prepared. The motorcycle was taken into police possession vide recovery memo Ex.PW4/F. After conducting physical search (Jamatalashi) of all the accused, they were arrested and intimation to that effect was sent to their relatives. Statements of witnesses were recorded under Section 161 Cr.P.C., and all accused along with case property were produced before Inspector-Digvijay Kapil, SHO PS City, Ropar, (PW7) who after verifying the facts affixed his seal bearing impression 'DK' on the case property and the same was deposited with the MHC.
3. On the next day, i.e. 12.10.2010, all the accused along with case property including four samples were produced before the Chief Judicial Magistrate, Ropar. After opening the seal of the case property, representative sample of 100 tablets of Phenotil and 10 capsules of Parvonspas were separately drawn to be kept as proof thereof and remaining case property was repacked and sealed with seal of the Court reflecting letters 'CJM/R'. Case property alongwith sample drawn by the Court as well as one sample taken at the time of recovery, was ordered to be deposited in the Judicial Malkhana. Remaining one sample already drawn at the time of recovery by the police was handed over to SI Nirmal Singh on his request. Photographs of t
