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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

370 CRA-S-2278-SB-2015 Date of decision : 25.08.2023 Gurpreet Singh ....Appellant V/s State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE ARUN MONGA Present: None for the appellant.

Mr. Amit Sharma, Advocate as Amicus Curiae Mr. Mohit Thakur, AAG, Punjab.

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ARUN MONGA, J.

Appeal herein is against the judgment of conviction and order of sentence dated 05.02.2015, passed by learned Judge (Ad hoc), Special Court, Gurdaspur, in case bearing FIR No.07 dated 17.01.2011, registered under Section 22 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) at Police Station, Civil Lines, Batala vide which the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default thereof, to further undergo rigorous imprisonment for 01 years.

2. Per prosecution version, on 17.01.2011, SI Balwinder Singh along with other police officials, was on routine patrolling, when appellant was seen walking. On seeing the police officials, he immediately stopped and sat down under a tree. He was apprehended on suspicion. He was made aware that he had legal right to be searched in the presence of a Gazetted Officer or a Magistrate. The appellant did not give his consent for either. Accordingly, dissent memo was prepared. Thereafter, Gurmit Singh, DSP City, came at the spot. After disclosing his identity and getting the consent of appellant, the investigating officer conducted the search of appellant. A polythene bag having powder in it, suspected to be intoxicating salt, was recovered from right pocket of his trousers. Appellant was thus arrested at the spot. A written information/ruqa was sent to the police station. Formal FIR was registered. Out of the recovered powder, two samples of 10 grams each were taken out and put in plastic container. Both samples were sealed with the seals bearing impression ‘GS’ and ‘BS’. The seal of the investigating officer after use was handed-over to HC Sardul Singh. Whereas, DSP kept his own seal with him. On receipt of chemical examiner report and after completing all the formalities of investigation, a report under Section 173 Cr.P.C. was prepared and presented in Court. Powder turned out to be intoxicant chemical- Dextropropoxyphene mixed with Paracetamol. Total weight of the intoxicant powder was 520 grams.

3. After complying with the provisions of Section 207 Cr.P.C., charge under Section 22 of the Act was framed against the appellant. He pleaded not guilty and sought a trial.

4. In order to prove its case, prosecution examined as many as six witnesses and closed its evidence.

5. Statement of appellant under Section 313 Cr.P.C. was recorded. He was confronted with all the incriminating circumstances as per prosecution evidence. He denied all of it and pleaded his innocence.

6. No evidence was led in defence by the appellant.

7. After appraisal of evidence, learned trial Court vide impugned judgment dated 05.02.2015, convicted and sentenced the appellant, as noted hereinabove.

8. Aggrieved, appellant has preferred the instant appeal.

9. Though appellant had engaged a counsel, but he did not appear on earlier occasions when matter was called for hearing. In the premise, Registry was asked to issue notice to learned counsel for the appellant. Needful was done. Yet, he chose not to appear. In the interest of justice, Mr. Amit Sharma, Advocate, who was present in Court, was requested to assist the Court as Amicus Curiae. He very graciously accepted the request of the Court.

10. Learned amicus curiae has emphatically contended that impugned order is unsustainable. He would argue that it is an admitted situation that there is non-compliance of mandatory provision of Section 52-A(2) of the Act. Even the procedural safeguards as mandated under the Act were not followed. No independent witness was joined. Prosecution failed to g