Research › Search › Judgment

Punjab High Court · body

2024 DIGILAW 1273 (PNJ)

Lakwinder Singh v. State of Punjab

2024-10-15

RAJESH BHARDWAJ

body2024
JUDGMENT : Rajesh Bhardwaj, J. This appeal has been filed by the appellant impugning the order dated 11.03.2016 whereby the appellant has been convicted by the learned Judge, Special Court, Patiala under Section 18(C) of the NDPS Act and sentenced for 01 month and 04 days and to pay fine of Rs.3,000/-, in default of payment of fine, to undergo further rigorous imprisonment for 07 days. 2. Succinctly, the facts of the prosecution case are that on 21.05.2014, the police party headed by ASI Narinderpal Singh while patrolling, at about 10:30 AM, saw 2-3 persons coming on Scooty who on seeing the police tried to turn back however, while doing, so, the Scooty skidded and they fell down. They were over-powered by the police party. On suspicion, they were apprehended by the police party. On asking, driver of Scooty disclosed his name as Lakhwinder Singh whereas, the person riding pillion disclosed his name as Rajinder Singh. ASI Narinderpal Singh suspecting them to carrying some intoxicant substance gave them an offer to be searched. On reposting confidence in him, their personal search was carried out by him and the search of the right pocket of Lakhwinder Singh (apellant). 200 grams of opium was revered and that on the search of Rajinder Singh, 50 grams of opium was recovered from his pocket. They failed to produce any license for possession of the same and hence, the FIR was registered and both were arrested by the police. The investigation commenced. The samples of the contraband were taken. On completion of the investigation, challan was presented and the charges were framed under Section 18 of the NDPS Act. Thereafter, the trial commenced. On conclusion of trial, learned trial Court found the charges having been proved by prosecution against both the accused convicted them vide order dated 11.03.2016 and both of them were sentenced for an imprisonment for a period of 01 month and 04 days. Aggrieved by the same, the appellant is before this Court by the way filing the present appeal. 3. Learned counsel for the appellant has vehemently contended that the appellant was falsely implicated in this case and the learned trial Court has misread the evidence produced by the prosecution, it has been vehemently argued by learned counsel that as per case of prosecution, the appellant along with co-convict was coming on Scooty 21.05.2014 at about 10:30AM. 3. Learned counsel for the appellant has vehemently contended that the appellant was falsely implicated in this case and the learned trial Court has misread the evidence produced by the prosecution, it has been vehemently argued by learned counsel that as per case of prosecution, the appellant along with co-convict was coming on Scooty 21.05.2014 at about 10:30AM. This it is evident that alleged recovery was made from the appellant in board day light in a public place. However, there is nothing on record that the police party joined any independent witness. She submits that non-joining of the independent witness creates a serious doubt about the recovery made from the appellant in a public place. She has further submitted that the recovery in the present case has been made by the police party on search of right pocket of the pant of appellant. It is submitted that thus, as per case of prosecution from personal search, recovery was made from the person of appellant and not form any article being carried by the appellant. It is submitted that as per the case of prosecution, this recovery was effected by the investigating officer himself and not in presence of Gazetted Officer or Magistrate. She submits that as per the settled position of law compliance of Section 50 of the NDPS Act is mandatory in nature. It is submitted that search of the appellant by investigating officer himself is totally in violation of the mandatory provisions of Section 50 of NDPS Act and thus the conviction is unsustainable in the eyes of law. She has further submitted that the CFSL form was filed at the spot however, the same was not made part of the challan. It is submitted that Form 29 is a valuable safeguard to ensure the sealed sample however the same not being part of the challan is a serious violation in the investigation conducted which falsify the alleged recovery from the appellant. She advanced her arguments while contending that ASI Narinderpal Singh produced the case property i.e. parcel sample seals and Scooty Aviator etc. before the officiating SHO ASI Sahab Singh who put his counter seal bearing impression ‘SS’ on the parcels of the case property. She advanced her arguments while contending that ASI Narinderpal Singh produced the case property i.e. parcel sample seals and Scooty Aviator etc. before the officiating SHO ASI Sahab Singh who put his counter seal bearing impression ‘SS’ on the parcels of the case property. She has submitted that through ASI Sahab Singh was cited as a witness in the challan but he was not examined by the prosecution which caste a serious doubt on the authenticity of the case of the prosecution as the link evidence is missing. It is contended by counsel for the appellant that as per case of prosecution, two samples were drawn from the contraband recovered from the appellant at the time of recovery made on 21.05.2024. It is submitted that PW-2 HC Avatar Singh had deposed in his cross examination that the entry was made in the registered regarding re-depositing of the sample parcel on 09.06.2014 but these samples were depositing by him in the FSL on 09.06.2014 She submits that the recovery was effected on 21.05.2014whereas the samples were deposited in the FSL on 16.06.2014 i.e. after an unexplained delay of 27 days. She submits that the site plan (Exhibit PW5/C) as per the case of prosecution was prepared at the spot but it bears the typed FIR number mentioned therein. This clearly shows that at the time when the ruqa was not even sent and no FIR was registered but the mentioning of the typed FIR number on this clearly shows that the documents were prepared while sitting in the police station and not at the spot as was portrayed by the prosecution. This clearly falsify the case of the prosecution and hence, the false implication of the appellant is writ large. Learned counsel for the appellant has submitted that from the entire case of the prosecution, it is evident that the mandatory provisions of Section 50 of NDPS Act have been grossly violated. The investigation carried out is totally a tainted investigation carried out is totally a tainted investigation and the false implication of the appellant is writ large. She submits that the learned trial Court has miserably failed to appreciate the evidence produced on anvil of the law settled and thus, the impugned conviction of the petitioner being unsustainable in the eyes of law, deserves to be set aside and the petitioner be acquitted from the charge framed. 4. She submits that the learned trial Court has miserably failed to appreciate the evidence produced on anvil of the law settled and thus, the impugned conviction of the petitioner being unsustainable in the eyes of law, deserves to be set aside and the petitioner be acquitted from the charge framed. 4. Learned state counsel has vehemently opposed the submissions made by the counsel for the appellant. It has been submitted that the appellant along with co-convict was arrested by the police party on suspicion. He submits that the search of the appellant was carried out after giving him offer under Section 50 NDPS Act once he reposed faith in the investigating officer; his search was carried out by him. It is submitted that immediately after their arrest, the samples were taken and the whole case property was produced before the Incharge which was duly sealed. This sealed property was deposited with the Incharge of the Judicial Malkhana and on receipts of the same, it was handed over to the MHC Avtar Singh. It is submitted that the sealed cover, the samples were deposited on 16.06.2014 in FSL, Kharar and there was no tampering whatsoever with the case property. He submits that simply because there was a delay in depositing the samples with the FSL, is no ground to discredit the case of prosecution. He submits that the prosecution witness have duly proved the case of the prosecution and in the cross-examination conducted by the defence, no material discrepancy was found by the learned trial Court in the prosecution case. He has submitted that it is settled principles of law that simply because no independent witness was joined, is not a ground to disbelieve the official witnesses produced by the prosecution. He submits that the prosecution had proved it case beyond the reasonable doubt thus, there being no infirmity in the conviction and sentence awarded to appellant, the appeal being devoid of any merits, deserves to be dismissed. 5. Heard. On hearing counsel for the parties and perusing the record, it is deciphered that the recovery in the present case from the appellant was made on 21.05.2014 at about 10:30 AM when he was coming on his Scooty with the co-convict from Ambala side. On suspicion, they were stopped. 5. Heard. On hearing counsel for the parties and perusing the record, it is deciphered that the recovery in the present case from the appellant was made on 21.05.2014 at about 10:30 AM when he was coming on his Scooty with the co-convict from Ambala side. On suspicion, they were stopped. The offer was given by the IO ASI Narpinderpal Singh to the effect that the appellant had right to be searched either by him or any Gazetted Officer or Magistrate but both the accused reposed confidence in him and thus, opted to be searched by him. On the search by PW-5 IO ASI Narpinderpal Singh, the contraband weighing 200 grams of opium was recovered from the right pocket of the pant of the appellant. Hence, the recovery is made from the personal search of appellant. The search has been made by the IO but not in the presence of Gazetted Officer or Magistrate. Though it is the case of the prosecution that the appellant reposed confidence in him and hence, he conducted the search appreciations of Section 50 of NDPS Act is relevant for resolving the controversy which read as follows 50. Conditions under which search of persons shall be conducted:- (1) When any offer duly authorized under Section 42 is about to search any persons under the provisions of Section 41, Section 42 or Section 43, he shall if such person to requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-Section (1) (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drugs or psychotic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the code of criminal procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior. 6. From the bare reading of the statutory provisions of Section 50 of the NDPS Act, it is apparent that the IO has to give an offer to be searched before the Gazetted Officer or the Magistrate but in the present case, the offer was given by the IO where he included himself along with the Gazetted Officer or the Magistrate which is in violation of the mandatory provisions of the Act. 7. Hon’ble the Supreme Court in Ranjan Kumar Chadha Vs. State of Himachal Pradesh, 2023 AIR Supreme Court 5164 has held as under:- 27. We have no hesitation in recording a finding that Section 50 of the NDPS Act Not was complied with as the appellant could not have been offered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told, whether he would like to searched before police officer or Gazetted Officer or Magistrate? Xxxxx 29. Thus from the oral evidence on record as discussed above, it is evident that Section 50 of the NDPS Act stood violated for giving a third option of being searched before a police officer. Xxxx 64 (iv) While informing the right only two options of either being searched in presence of Gazetted officer or Magistrate must be given who also must be independent and in no way connected to the raiding party. 8. Xxxx 64 (iv) While informing the right only two options of either being searched in presence of Gazetted officer or Magistrate must be given who also must be independent and in no way connected to the raiding party. 8. Further Section 50(5) mandates that if the Investigating Officer is not in a position to take the accused to Gazetted Officer or the Magistrate then in that situation, he can search the accused himself. however, no evidence has been produced on record showing such an exigency where the Investigation Officer had no opportunity to take the appellant to the nearest Gazetted Officer or the Magistrate expect to proceed himself for search of appellant. From the appreciation of the evidence on record, it is found that there recovery has been made during day time in public place however, no independent witness has been joined by the investigation agency. Though the evidence produced by the official witnesses are admissible however, every case rests on its own facts and circumstances. This Court ignore the facts that the penal provisions of the NDPS Act are very stringent in nature and hence, as per the settled law, the compliance of these provisions is required to meticulously made by the investigating agencies. 9. Hon’ble the Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujrat, 2011(1) SCC 609 , has held as under:- 22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the Narcotic Drugs and Psychotropic Substances Act, by way of a safeguard, has been conferred on suspect, viz.to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub Section (1) of Section 50 of the Narcotic Drugs and Psychotropic substance Act is concerned, it is mandatory and requires a strict compliance. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub Section (1) of Section 50 of the Narcotic Drugs and Psychotropic substance Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of accused during such search. Similar view has been taken in judgement titled as Mina Pun Vs. State of Uttar Pradesh, 2023(3) Law Herald (SC) 2033. 10. This Hon’ble Supreme Court in State of Punjab Vs. Baldev Singh, 1999(6) SCC 172 has observed that the conditions prescribed in Section 50 are an obligation imposed upon the empowered officer and same must be duly complied with before conducting any search of a person. The relevant observations are reproduced hereunder:- “24. … There is, thus unanimity of judicial pronouncements to the effect that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he was a right to require his search being conducted in the presence of a Gazetted officer or a Magistrate and that the failure to inform the suspect of his rights would render the search illegal because the suspect would render the search illegal because the suspect would not be able to avail of the protection which in built in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and conviction and the sentence of the accused bad.” 11. The samples which were drawn on 21.05.2014 had been sent to the FSL on 16.04.2014 i.e. after 27 days. There is nothing on record to justify this delay in depositing of the samples after 27 days when the case property was produced before the Magistrate on the very next date of the recovery. 12. The samples which were drawn on 21.05.2014 had been sent to the FSL on 16.04.2014 i.e. after 27 days. There is nothing on record to justify this delay in depositing of the samples after 27 days when the case property was produced before the Magistrate on the very next date of the recovery. 12. Learned state counsel has produced the custody certificate of the appellant which would show that the appellant has no criminal antecedent as he has never been involved in any other case. From the overall re-appreciation of the evidence on record, on the anvil of the law settled, this Court finds that the prosecution case is not free from doubts. There is violation of mandatory provisions of Section 50 of the NDPS Act and thus, the benefits of doubt lies in favour of the appellant. Resultantly, the conviction and the sentence awarded to the appellant are hereby set aside. The appellant is acquitted of charges framed against him. The appeal is allowed.