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2000 DIGILAW 228 (PNJ)

Daljit Singh @ Dili v. State of Punjab

2000-02-23

T.H.B.CHALAPATHI

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JUDGMENT T.H.B. Chalapathi, J. - This appeal is directed against the conviction and sentence imposed by learned Sessions Judge, Sangrur on the accused-appellant in Sessions Case No. 4 of 9.1.1998 for the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act, 1985. 2. According to the case of the prosecution on 28.10.1997 Sub Inspector of Police Wassan Singh accompanied by Head Constable Pardeep Kumar, Constable Parshotam Ram, Surjit Singh and Ram Pal, was holding a Naka in the village Khal. At about 2-30 P.M. the accused was found coming from the side of village Arkwas carrying a bag on his left shoulder. On seeing the Police Party, he tried to run away, but he was apprehended on suspicion. He was offered to be searched in the presence of a Gazetted officer or a Magistrate. The accused wanted to be searched in the presence of a Gazetted Officer. Then a wireless message was sent to the Deputy Superintendent of Police Moonak, who came to the spot and a search was conducted in the presence of the Deputy Superintendent of Police which revealed that the bag carried by the accused contained poppy husk weighing 6 Kgs. Two samples of 250 Gms each were taken and put into two separate parcels. The rest of the poppy husk was also kept in a sealed parcel. The poppy husk was taken into possession under recovery memo. A ruqa was sent to the Police Station on the basis of which FIR was registered. After completion of the investigation, a chargesheet was filed for the offence under Section 15 of the Narcotic Drugs & Psychotropic Substances Act. The accused pleaded not guilty to the said offence. 3. In order to prove the glut of the accused, the prosecution examined six witnesses and marked certain documents. After closure of the evidence for the prosecution, the accused was examined under Section 313 Criminal Procedure Code He denied the commission of the offence, but he did not examine any witness in defence. 4. On a consideration of the evidence on record, the learned Sessions Judge convicted the accused for the offence under Section 15 of N.D.P.S. Act and sentence him to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. one lac. 5. Aggrieved by the said conviction and sentence, the accused filed this appeal. 6. 4. On a consideration of the evidence on record, the learned Sessions Judge convicted the accused for the offence under Section 15 of N.D.P.S. Act and sentence him to undergo rigorous imprisonment for a period of 10 years and pay a fine of Rs. one lac. 5. Aggrieved by the said conviction and sentence, the accused filed this appeal. 6. The learned counsel for the appellant argued that the grounds of arrest have not been supplied to the appellant as required under Section 50 of the Criminal Procedure Code and there is non-compliance of Sections 42 and 50 of the N.D.P.S. Act and also Section 100 Criminal Procedure Code since no person from the locality has been associated in the search. Therefore, the seizure of the poppy husk from the accused is illegal and the accused is entitled to be acquitted. 7. In this case, the accused was not arrested on suspicion. He was only apprehended on suspicion since the accused-appellant tried to run away on seeing the Police party. Section 50 Criminal Procedure Code will apply only if the person was arrested. Under the said Section, every Police Officer arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. When a person has been apprehended on mere suspicion, it does not amount to arrest and it cannot be said that there is any violation of Section 50 of Criminal Procedure Code Immediately after apprehension, a search was made in the presence of Deputy Superintendent of Police and poppy husk was recovered from his possession. Then only his arrest was shown. In such circumstances, it cannot be said that there is violation of Section 50 of the Code of Criminal Procedure. 8. The argument of the learned counsel for the appellant that there is a violation of Section 42(2) of the Narcotic Drugs & Psychotropic Substances Act also cannot be accepted. Sub-section (2) of Section 42 of the N.D.P.S. Act applies where the Police Officer received some information in regard to the contravention of the provisions of the Act. In this case, there was no prior information that the accused was in possession of poppy husk. Therefore, in my view sub-section (2) of Section 42 of the N.D.P.S. Act has no application. 9. In this case, there was no prior information that the accused was in possession of poppy husk. Therefore, in my view sub-section (2) of Section 42 of the N.D.P.S. Act has no application. 9. The next argument of the learned counsel for the appellant that there is violation of Section 50 of the N.D.P.S. Act also cannot be accepted. It is in the evidence of PW-4 that the accused was told that search of the bag which he was carrying on his shoulder was to be conducted and if he so desired the search could be conducted in the presence of a Gazetted Officer or a Magistrate. The accused opted to be searched in the presence of a Gazetted Officer. Thereupon a wireless message was sent to the Deputy Superintendent of Police who has been examined as PW-2 who arrived at the spot and the search was conducted in his presence. The search resulted in recovery of poppy husk weighing 6 Kgs from the bag carried by the accused. When the offer was made to the accused being searched in the presence of a Gazetted Officer or a Magistrate and the accused opted to be searched by a Gazetted Officer, it cannot be said that there is any violation of Section 50 of N.D.P.S. Act. This argument is also without any force. 10. The other argument of the learned counsel for the appellant that there is violation of Section 100 Criminal Procedure Code is to be mentioned only to be rejected. It has been held by the Apex Court in State of Punjab v. Balbir Singh, JT 1994(2) S.C. 108 that non-compliance of the provisions of Section 100 Criminal Procedure Code would not vitiate the trial. The effect of such failure has to be borne in mind while appreciating the evidence. If the evidence of the police officials can be believed, then the accused is not entitled to be acquitted merely on the ground of non-compliance with the provisions of Section 100 Criminal Procedure Code The evidence of PW-2 clearly shows that in his presence, the search was conducted by Sub Inspector Wassan Singh and the search resulted in recovery of 6 Kgs of poppy husk out of which two samples of 250 Gms were taken out. His evidence also shows that the samples were sealed and the remaining poppy husk of 550 Kgs (5.500 Kg ?) were separately kept in a plastic bag and sealed. The evidence of PW-4 corroborates the evidence of PW-2. I do not find any ground for disbelieving the evidence of PW-2 and PW-4. 11. The learned counsel for the appellant further contended that some of the seals of the samples were found to be broken. But the evidence on record clearly shows that all the seals were not broken. If some of the seals put on the samples were broken, it cannot be said that they have been tampered with. When the remaining seals were intact, it cannot be said that there is any tampering with the seals. 12. On a consideration of the material on record, I do not find any ground to interfere with the conviction and sentence imposed on the accused-appellant by the learned Sessions Judge. The appeal, therefore, fails and is, accordingly, dismissed. Appeal dismissed.