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2002 DIGILAW 669 (PNJ)

State Of Haryana v. Raj Kumar

2002-07-16

HEMANT GUPTA, R.L.ANAND

body2002
Judgment Hemant Gupta, J. 1. State of Haryana has filed the present appeal against the judgment dated 6.10.1993 passed by the Additional Sessions Judge, Hisar acquitting respondent herein in a trial under Section 19 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as `the Act). 2. After completion of some formalities, the accused was taken to Police Station Bhattu Kalan where he was produced along with witnesses and case property before SI/SHO Sukhdev Singh who affixed his seal bearing impression `SS in both the parcels. The sample was sent to Forensic Science Laboratory and the report was found to be positive of opium. Consequently, the accused were challaned and the charge under Section 18 of the Act was framed against the accused. The prosecution has examined four witnesses and produced two affidavits. Darshan Singh the sole independent witness was given up having been won over by the accused. Accused denied the allegations of prosecution in his statement under Section 313 of the Code of Criminal Procedure and stated that he had gone to purchase a buffalo from the fair of village Agroha and a false case has been implanted upon him. 3. The trial Court appreciated the evidence brought on record and found that the charges levelled against the accused is not true and consequently passed the order of acquittal. 4. In this appeal, we have heard Sh. D.P. Singh, Additional Advocate General, Haryana and Sh. Ajay Lamba, Advocate, for the respondent and with their assistance gone through the record carefully. 5. The opium is purported to be recovered from the accused by SI Ajaib Singh who has appeared as PW3 supported by PW2, Head Constable Sakatar Singh. As per their statement, they have called D.S.P. Bishan Singh to comply with the requirement of search by a Gazetted Officer in terms of Section 50 of the Act. 6. It has been argued by the counsel for the petitioner that the requirement of personal search by Gazetted Officer or Magistrate in terms of Section 50 of the Act would not be attracted in the present case inasmuch as the contraband material was found in a bag and not on the person of accused. Therefore, the finding recorded by the trial Court that there was violation of Section 50 of the Act is not sustainable. Therefore, the finding recorded by the trial Court that there was violation of Section 50 of the Act is not sustainable. Counsel for the also relied on Kalema Tumba v. State of Maharashtra and another, (1999)8 SCC 257 : 1999(4) RCR(Crl.) 575 (SC) wherein it has been held as under :- "Ms M. Qamaruddin, learned counsel for the appellant submitted that the mandatory requirement of Section 50 of the NDPS Act was not complied with and therefore the evidence regarding recovery and seizure of heroin should be regarded as illegal. She further submitted that the appellant could not have been convicted on the basis of that evidence. It was submitted by her that the appellant was not told before the search by the officers of the Narcotic Control Burearu that he had a right to be searched in the presence of a gazetted Officer or a Magistrate. This contention deserves to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a gazetted officer or a Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused is to be searched. The decision of this Court in State of Punjab v. Jasbir Singh wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a gazetted officer or a Magistrate, now stands overruled by the decision in Baldev Singh case. If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it, it cannot be said that it was found from his "person". If a person is carrying a bag or some other article with him and a narcotic drug or a psychotropic substance is found from it, it cannot be said that it was found from his "person". In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in the presence of the gazetted officer or a Magistrate." In view of the said judgment, the finding of the trial Court that D.S.P. Bishan Singh was not present at the time of search on the person of respondent is wholly immaterial. Since the contraband has been alleged to have been found in a bag, therefore, Section 50 of the Act has no application. 7 The other glaring aspect is that the sample was sealed with seal `SS and weighed 50 grams. It has been so stated by PW-2 Sakatar Singh and PW3 Ajaib Singh. It has been stated by both of them that the sample was sealed with the seal bearing impression `SS. However, PW1 SI Sukhdev Singh has stated that he affixed seal of `SSY. Obviously the statement of PW1 Sukhdev Singh is not trust-worthy inasmuch as the documents of recovery as well as the statements of witnesses only talk about the impression `SS. It appears that SI Sukhdev Singh introduced seal `SSY only to bring his statement in tune with the report of Forensic Science Laboratory wherein it was stated that the sample sent for testing has the impression of seal SSY (report Ex.PK). As a matter of fact, the report shows that the weight of sample was approximately 78 grams whereas it was the case of the prosecution that the sample weighed 50 grams. Thus there is apparent contradiction in the matter of seal on the sample and the weight which completely belies the case of the prosecution. Moreover, no independent witness has been produced to support the prosecution case. The sole independent Darshan Singh has not been examined during trial. Keeping in view the facts and circumstances of the case and on re-appreciating the evidence, we do not find any reason to take a different view than the view taken by the trial Court. Consequently, we dismiss the appeal.