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2001 DIGILAW 889 (PNJ)

Gurdev Singh v. State Of Punjab

2001-08-21

V.M.JAIN

body2001
Judgment V.M.Jain, J. 1. This is an appeal against the judgment and order dated 28.9.1985 passed by the Additional Sessions Judge, Faridkot, convicting the accused appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentencing him to undergo RI for 10 years and to pay fine of Rs. 1 lakh and in default of payment of fine to further undergo RI for 3 years. Initially the appeal was filed through jail. Later on, accused appellant had engaged a counsel, who addressed arguments in this appeal on behalf of the accused appellant. 2. The facts in brief are that on 26.5.1993, ASI Gurcharan Singh, while posted in CIA Staff, Moga alongwith other members of the police party was going from Bohana to Bughipura in a government vehicle and when the police party reached the culvert of a drain in the area of Village Bohana, accused appellant Gurdev Singh was found sitting on the gunny bags in the drain. Suspecting that the gunny bags contained some intoxicants, accused appellant Gurdev Singh was served with a notice as to whether he wanted the search to be taken by a Magistrate or a Gazetted Officer. However, the accused declined the offer and reposed confidence in ASI Gurcharan Singh, whereupon consent memo Exhibit PB was prepared in this regard, which was thumb marked by accused appellant Gurdev Singh and attested by the other police officials. Thereafter search was taken and all the 5 bags which were in possession of accused appellant Gurdev Singh were found containing poppy husk. Four of the bags were found containing 40 kilograms while 5th bag was found containing 36 kilograms of poppy husk. A sample of 250 grams of poppy husk was taken out from each gunny bag and thereafter samples and the bulk were duly sealed. The samples and the bulk were taken into possession vide recovery memo Exhibit PC after preparing the sample seal. The seal after use was handed over to ASI Surjit Singh. Thereafter ASI Gurcharan Singh sent ruqa Exhibit PE to the police station, on the basis of which formal FIR exhibit PE/1 was recorded. ASI Gurcharan Singh prepared the rough site plan Exhibit PF and recorded the statements of PWs. The seal after use was handed over to ASI Surjit Singh. Thereafter ASI Gurcharan Singh sent ruqa Exhibit PE to the police station, on the basis of which formal FIR exhibit PE/1 was recorded. ASI Gurcharan Singh prepared the rough site plan Exhibit PF and recorded the statements of PWs. On reaching the police station, ASI Gurcharan Singh produce the case property alongwith accused before SHO Ajmer Singh, who after verifying the investigation from him and the accused, affixed his own seal on the 5 samples and 5 gunny bags and also attested the sample seal. Thereafter, ASI Gurcharan Singh deposited the case property while the accused was lodged in police lock up. After receipt of the report of the Chemical Examiner and after completion of investigation challan was put in the court. The learned Additional Sessions Judge charged the accused under Section 15 of the NDPS Act to which charge he pleaded not guilty and claimed trial. 3. Prosecution in support of its case examined PW1 ASI Surjit Singh, PW2 ASI Gurcharan Singh and PW3 ASI Ajmer Singh and thereafter the learned Public Prosecutor closed the prosecution evidence, after tendering in evidence the affidavits of Constable Sukhwinder Singh and MHC Surpal Singh and after tendering in evidence the report of the Chemical Examiner Exhibit PF and after giving up the remaining witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded in which he denied the prosecution allegations and stated that he was innocent and that he had been falsely implicated in this case. He stated that nothing was recovered from him. The accused was called upon to enter upon defence. However, he did not produce any evidence in defence and closed the defence evidence. 4. The learned Additional Sessions Judge, after hearing both sides and after perusing the record, convicted the sentenced the accused appellant, as referred to above, vide judgment and order dated 28.9.1995. It is against this judgment and order of the learned Additional Sessions Judge that the accused appellants has filed the present appeal in this court. 5. I have heard the learned counsel for the parties had have gone through the record carefully. 6. It is against this judgment and order of the learned Additional Sessions Judge that the accused appellants has filed the present appeal in this court. 5. I have heard the learned counsel for the parties had have gone through the record carefully. 6. Learned counsel appearing for the accused appellant submitted before me that in this case there was non compliance of Section 50 of the NDPS Act inasmuch as the search was taken by ASI Gurcharan Singh and that search was not taken before a Magistrate or a Gazetted Officer. However, I find no force in this submission of the learned counsel for the accused appellant. It has come in the evidence of ASI Gurcharan Singh that accused appellant Gurdev Singh was asked as to whether he wanted the search to be taken before a Magistrate or a Gazetted Officer but he had declined and a consent memo Exhibit PB was prepared in this regard, which was duly thumb marked by Gurdev Singh and attested by PWs. In this view of the matter, it would be clear that accused appellant was informed about his right to get the search conducted in the presence of Magistrate or a Gazetted Officer. However, accused appellant Gurdev Singh declined to exercise his right to get the search effected in the presence of a Magistrate or a Gazetted Officer. Secondly, Section 50 of the NDPS Act would not be applicable in this case, inasmuch the personal search of accused appellant was not taken but the poppy husk was recovered from the gunny bags which were lying in the drain and accused appellant was found sitting on those gunny bags. It was not a case of personal search. Thus Section 50 of the NDPS Act would have no application to the present case, in view of the law laid down by the Honble Supreme Court, in the cases reported as State of Punjab v. Baldev Singh, 1993(3) RCC 498 (SC) : 1999(3) RCR(Criminal) 533 and Gurbax Singh v. State of Haryana, 2001(3) RCC 613 (SC) : 2001(1) RCR(Criminal) 702. 7. It was then submitted before me by the learned counsel for the accused appellant that there was non-compliance of Sections 52, 55 and 57 of the NDPS Act and as such the accused appellant is entitled to be acquitted on this ground alone. 7. It was then submitted before me by the learned counsel for the accused appellant that there was non-compliance of Sections 52, 55 and 57 of the NDPS Act and as such the accused appellant is entitled to be acquitted on this ground alone. However, I find no force in this submission as well of the learned counsel for the accused appellant. When ASI Gurcharan Singh appeared in the witness box as PW2, he specifically stated that the grounds of arrest were duly intimated to the accused orally. He further deposed that after recovery, he had gone to the police station and had produced the case property and the accused before SHO Ajmer Singh, who verified the investigation from him and accused had affixed his own seal on the samples, gunny bags containing the bulk and sample seal and thereafter he had deposited the case property in the police station. This witness was not at all cross examined on behalf of the accused in this regard. The prosecution also examined PW3 ASI Ajmer Singh, the then SHO, who deposed that on 26.5.1993 ASI Gurcharan Singh, Incharge CIA Staff had produced before him the accused alongwith 5 gunny bags and 5 samples containing poppy husk duly sealed and that the seals were intact. He further stated that after verification of the investigation, he had affixed his own seal on all the 10- parcels and had also attested the sample seal. He further stated that he had retained the case property in his custody till it was produced in the court on the next date. He stated that after obtaining orders from the court, the case property was deposited with the MHC with seals intact. He stated that the accused was also produced in the court alongwith the case property. He denied the suggestion that the case property was not produced before him. 8. In my opinion, the provisions of Section 52 and 55 were duly complied with in the present case. Furthermore, the mere non-compliance of Section 57 of the NDPS Act would be of no significance and cannot be made basis for acquitting the accused in this case, especially when the provisions of Sections 52 and 57 have been held only to be directory and not mandatory as laid down in 2000(3) RCC 613 (SC) : 2001(1) RCR (Criminal) 702 (supra). Recovery of 5 bags of poppy husk from the possession of the accused petitioner fully stands proved from the statements of PW1 ASI Surjit Singh and PW2 Gurcharan Singh. 9. It was then submitted before my by the learned counsel for the accused appellant that in the present case independent witness associated while setting out for patrol. He stated that no one passed that way at the time of recovery but thereafter people kept on passing and none of them was asked to join the investigation. In my opinion, the minor discrepancies in this regard would not be sufficient to throw away the case of the prosecution, especially when the recovery fully stands proved from the testimony of PW1 ASI Surjit Singh and PW2 Gurcharan Singh and it was a chance recovery. No other point has been urged before me during the course of arguments by the learned counsel for the parties. For the reasons, recorded above, finding no merit in this appeal the same is hereby dismissed.