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2013 Supreme(UK) 482
SUPREME COURT OF INDIA
Hon'ble Mr. Justice Surinder Singh Nijjar and
Hon’ble Mr. Justice Fakkir Mohammed Ibrahim
Criminal Appeal No. 1868 of 2013
GURJANT SINGH @ JANTA – Appellant
Versus
STATE OF PUNJAB – Respondent
Decided on : 28.10.2013
For the Appellants : Mr. S.S. Ray, learned counsel
For the Respondent: Mr. Sanchar Anand, learned Addl. Adv. General
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985, Sec. 50 — Legal requirement of compliance — Such compliance of the requirement u/s 50 of holding a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality — In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of ensuring that there was every bonafide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and establish the truth before the appropriate judicial forum — Also, compliance of Sec. 50 enables the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against — Therefore, such a dual requirement of law prescribed u/s 50 cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it. (Para 23)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, Secs. 42 and 50 — Provisions — Compliance of — Search and seizure was made in presence of PW3, stated to be the D.S.P. — But, trial Court failed to appreciate whether such a search or seizure was really held in accordance with Secs. 42 and 50, NDPS Act — Also, trial Court had taken a view that Secs. 42 and 50 were not applicable and completely omitted to examine the said defence raised on behalf of the appellant — In such circumstances, highly dangerous to simply affirm the ultimate conclusion of the trial Court in convicting the appellant — High Court also failed to independently examine the correctness of the findings recorded by the trial Court and affirmed the conviction — Thus, judgment of the trial Court confirmed by the High Court, not sustainable — Appeal allowed. (Paras 24 to 27)
¼v½ Lokid vkS”kf/k ,oa eu izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk 50 & vuqikyu dh fof/kd vko’;drk & U/s 50 vko’;drk dk vuqikyu fd jktif=r vf/kdkjh ;k eftLVªsV ds le{k ryk’kh vkSj vfHkxzg.k ,dek= vkSipkfjdrk ugha & ;g fd jktif=r vf/kdkjh ;k eftLVªsV dh mifLFkfr esa ryk’kh dk iz;kstu gS fd vfHk;kstu }kjk fuf’prrk lHkh okLrfod iz;Ru fd, x;s fofuf”k) j[kus ds ?kksj vijk/k dks fl) djus ds fy, & vkSj lR; LFkkfir djus ds fy, vijk/kh ds fo#) leqfpr U;kf;d vnkyr esa vfHk;kstu okn nk;j fd;k tk, & /kkjk 50 dk vuqikyu] dfFkr ?kksj vijk/k ds vfHk;qDr dks Hkh fo’okl fnykrk gS fd jktif=r vf/kdkjh ;k eftLVªsV dh mifLFkfr mls leFkZ cuk,xh fd og fojks/k dj lds viuh ryk’kh dk vkSj jktif=r vf/kdkjh ;k eftLVªsV dks lEer dj lds fd og mlds Lora=rk ds ekSfyd vf/kdkj dks cpk lds & bl izdkj u/s 50] fof/k dh nksgjh vko’;drk dks U;k;ky;ksa }kjk bl izdkj ds vijk/kksa ds okn esa gYdsiu ls ugha fy;k tk ldrkA ¼izLrj 23½
¼c½ Lokid vkS”kf/k ,oa eu izHkkoh inkFkZ vf/kfu;e] 1985] /kkjk 42 o 50 & izkoèkku & vuqikyu & PW3] dfFkr D.S.P. ds le{k ryk’kh vkSj vfHkxzg.k & ijUrq ijh{k.k vnkyr vlQy jgh Fkh foospuk djus esa fd ;g ryk’kh ;k vfHkxzg.k /kkjk 42 vkSj 50, NDPS Act ds vuqlkj gqbZ Fkh & ijh{k.k vnkyr us ;g fopkj fn;k fd /kkjk 42 vkSj 50 izk;ksT; ugha Fkh vkSj vihykFkhZ ds i{k ij dfFkr izfrj{kk dk ijh{k.k yksi dj fn;k x;k Fkk & bu ifjfLFkfr;ksa esa ijh{k.k vnkyr }kjk vihykFkhZ ds nks”kkjksi.k ds fu.kZ; dks vfHkiq”V djuk [krjukd & mPp U;k;ky; }kjk Hkh Lora= :i ls fopkj.k vnkyr ds fu”d”kZ dk ijh{k.k ugha fd;k x;k Fkk & mPp U;k;ky; }kjk LohÑr fopkj.k vnkyr dk vkns’k iq”V ugha & vihy LohÑrA ¼izLrj 24 ls 27½
Fakkir Mohamed Ibrahim Kalifulla, J. — Delay condoned.
2. Leave granted.
3. This appeal is directed against the judgment of the High Court of Punjab and Haryana at Chandigarh dated 12.08.2010 in Criminal Appeal No.5-SB of 2000. The appellant was proceeded against for an offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called “the NDPS Act”). The trial Court by its judgment dated 30.07.1999, in Sessions Case No.39 of 31.05.1996, found the appellant guilty of the offence alleged against him and while convicting him imposed a sentence of 10 years rigorous imprisonment apart from a fine of Rs.1,00,000/- (Rupees One Lac only) and in default of payment of fine to undergo rigorous imprisonment for one more year.
4. The case of the prosecution as projected before the trial Court was that on 04.04.1996, S.I. Darbara Singh, who was examined as P.W.6, was posted as S.H.O, Police Station, Sunam. According to him he along with A.S.I. Balbir Singh, A.S.I. Massa Singh, H.C. Bhim Sain and other police officers were present at ‘T’ point in an area of village Ugrahan in connection with Nakabandi. At about 00.15 AM, one tractor trolley was seen coming from the side of village Ugrahan. The head lights of the tractor trolley were on and P.W.6 gave a signal from his torch light and the tractor trolley was stopped by the driver. According to P.W.6, as soon as the tractor trolley was stopped, the driver who tried to slip away was overpowered by P.W.6 and other police officials. The driver stated to have revealed his name as Gurjant Singh @ Janta, the appellant herein. Thereafter, when P.W.6 checked the trolley of the tractor he found three gunny bags lying inside the trolley. P.W.6 informed the appellant that he intended to search the gunny bags as he suspected some incriminating article in the gunny bags. P.W.6 further informed the appellant that, if he so desired, the search could be conducted in the presence of a Gazetted officer or a Magistrate. The appellant stated to have expressed his consent that the search may be conducted in the presence of some Gazetted officer or a Magistrate.
5. After recording the statement of the appellant and after getting his signature attested by A.S.I Balbir Singh and A.S.I Massa Singh, P.W.6 claimed to have flashed a wireless message whereupon Baldev Singh, DSP, Sunam, who was examined as P.W.3, reached the spot. P.W.6 stated to have searched the gunny bags lying in the tractor trolley in which poppy husk was recovered. P.W.6 claimed to have drawn two samples of 250 gms from each of the gunny bag. The remaining poppy husk, which weighed to the extent of 34 kg in each of the gunny bag, was stated to have been separately sealed, while the six sample parcels were also sealed separately with the impression ‘DS’. P.W.6 also claimed to have prepared a sample seal chit separately. Tractor trolley and the case properties were taken into possession by P.W.6 through a recovery memo attested by P.W.3 as well as by A.S.I Balbir Singh and A.S.I. Massa Singh. The appellant was stated to have been arrested, and the arrest memo along with Rukka, was sent to the police station through C. Harjinder Singh, based on which an FIR was recorded by A.S.I Sukhdev Singh. After preparing the rough site plan of the place of recovery with correct marginal notes and after recording the statement of the witnesses on the same day, P.W.6 stated to have deposited the case property with the MHC with seals intact along with the sample seal.
6. The final report was thereafter stated to have been filed in the Court. Before the trial Court P.W.1 Kulwant Singh, Registration Clerk, P.W.2 A.S.I Balbir Singh, P.W.3 D.S.P. Baldev Singh, P.W.4 Harbans Singh C.No.365, P.W.5 Jaswinder Singh and P.W.6 S.I. Darbara Singh were examined and the report of the Chemical Examiner Ex.PK was also filed. When the incriminating circumstances were put to the appellant under Section 313 Cr.P.C, appellant pleade
