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2021 Supreme(P&H) 1310
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Harnaresh Singh Gill, J.
Rajwinder Singh @ Happy - Appellant
Versus
State Of Haryana - Respondent
Cr A (S) No. 564 of 2021
Decided On : 02-08-2021
D.S. Virk, Advocate, Pradeep Parkash Chahar, Advocate
The competence of the Investigating Officer and the legality of search and seizure under the NDPS Act are crucial for establishing guilt beyond a reasonable doubt.
Headnote:
NDPS Act - Conviction under Section 21(b) - [Narcotic Drugs and Psychotropic Substances Act, 1985, Section 21] - The court discussed the competence of the Investigating Officer, the requirement of a substantive rank for exercising powers under the NDPS Act, and the significance of over-writing in the notice and consent memo. Key legal provisions such as Sections 42 and 67 of the NDPS Act were interpreted to determine the legality of the search and seizure, ultimately influencing the court's decision to acquit the accused.
Fact of the Case:
The appellant was convicted under Section 21(b) of the NDPS Act based on the recovery of 'smack' from his possession. The appellant challenged the competence of the Investigating Officer and the validity of the search and seizure.
Finding of the Court:
The court found that the Investigating Officer was not competent to exercise powers under the NDPS Act as he did not hold a substantive rank required for such duties. The over-writing in the notice and consent memo raised doubts about the prosecution's case, leading to the benefit of doubt being given to the accused.
Issues: Competence of the Investigating Officer, validity of the search and seizure, over-writing in the notice and consent memo.
Ratio Decidendi: The court held that the Investigating Officer's lack of substantive rank rendered the search and seizure illegal, and the over-writing in the notice and consent memo raised reasonable doubt, entitling the accused to acquittal.
Final Decision: The appeal was allowed, the conviction and sentence were set aside, and the accused was acquitted due to the benefit of doubt.
JUDGMENT
Harnaresh Singh Gill, J. - Case was taken up for hearing through video conferencing.
2. The instant criminal appeal is directed against the judgment and order dated 19.03.2021 passed by the learned Special Judge, Kaithal, whereby the appellant was convicted under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, 'NDPS Act') and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/- with default stipulation.
3. The contour and adumbration of the prosecution case, relevant for deciding the instant appeal, is that acting on a tip-off, the police party raided the house of the accused-appellant, who tried to slip away, but had been apprehended. The Investigating Officer had a suspicion that the accused was in possession of narcotics, and therefore, his search was required. On being apprised the accused of his right to get the search conducted in the presence of a Gazetted Officer, he had agreed for the same and thereafter, on being informed, Sultan Singh, DSP, Guhla, had arrived there. On conducting the search of the accused, a sky blue polythene containing 'smack' was found in his left pocket. On being weighed, the substance was found to be 25 gram, including the weight of the polythene. The sample was drawn therefrom, which had been converted into parcel. The parcels of the case property and sample had been taken into police possession. The accused was arrested and the case property was deposited with the MHC. Having completed all the statutory formalities, challan was filed against the accused.
4. On finding a prima face case, the accused was charge-sheeted under Section 21 of the NDPS Act, to which he pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined Sub Inspector Krishan Kumar as PW 1, Head Constable Raj Singh as PW 2, Constable Rajesh as PW 3, DSP Sultan Singh as PW 4, Head Constable Sukhchain Singh as PW 5, Assistant Sub Inspector Joginder Singh as PW 6, Sukhwant Rai, Ahlmad as PW 7, Sub Inspector Satbir Singh as PW 8 and Assistant Sub Inspector Jaipal as PW 9. Thereafter, the learned A.P.P. closed the prosecution evidence.
6. Statement of the accused under Section 313 Cr.P.C. was recorded and the entire incriminating circumstances appearing in the prosecution evidence was put to him to which he pleaded false implication. In his defence, he had examined Assistant Sub Inspector Randhir Singh as DW 1.
7. After appreciating and taking into consideration the entire oral as well as documentary evidence, the accused-appellant was convicted and sentenced, as noticed above.
8. Being aggrieved and dissatisfied with the impugned judgment of conviction and order of sentence, the present appeal has been filed.
9. I have heard the learned counsel for the parties and gone through the entire record with meticulous care.
10. Learned counsel for the appellant contended that Exemptee ASI Joginder Singh, while appearing before the trial Court as PW 6, had claimed himself to be an ASI, but in fact, he was not holding the substantive rank of ASI and had been in the rank of the Head Constable. To elaborate his argument, learned counsel relied upon the deposition of DW 1 ASI Randhir Singh. The said DW 1 categorically stated that HC/EASI Joginder Singh, Investigating Officer in the present case, was promoted an officiating Head Constable w.e.f. 23.02.2010 and was further promoted an EASI we.f. 07.01.2011 and that he was not holding the rank of a substantive ASI at the relevant time. He further contended that HC/EASI Joginder Singh was not competent to investigate the present case at the relevant time and, therefore, the alleged recovery effected by him, would be per se illegal and has not only affected the case of the prosecution, but it has vitiated the very trial. In support of his contentions, the learned counsel relied upon the judgments rendered by Hon'ble the Supreme Court in Roy VD Vs. State of Kerala, (2001) 1 ApexCJ 49 (SC) and
