2010 (2) TMI 1051 - SC - Customs

Whether the conviction upheld of the appellant by the Additional Sessions Judge, Kurukhestra, vide judgment and order dated 5.11.1997/6.11.1997 in Sessions Case No.14 of 1996, for offences punishable under Section 20 of the Narcotics Drugs & Psychotropic Substances Act, 1985 correct? Held that - Appeal dismissed. No infirmity in the impugned order of the High Court. For applying the principle of parity both the accused must be involved in same crime and must be convicted in single trial, and consequently, a co-accused is one who is awarded punishment along with the other accused in the same proceedings. However, we are unable to apply the principle of parity to the present case as the record show that the accused Randhir Singh was convicted vide a separate trial arising out of a separately registered F.I.R. Merely because the accused Randhir Singh happened to be searched on 24.1.1996 before the same gazetted officer i.e. D.S.P., Pehowa, Shri Paramjit Singh Ahalawat, he cannot be said to be a co-accused in the present case. Further, the sentence of accused Randhir Singh was altered by the Punjab and Haryana High Court vide a separate judgment dated 3.12.2002 arising out of a separate appeal being Criminal Appeal No.855-57 of 1999. Therefore, we do not find any merit in the contention canvassed by learned counsel for the appellant.

Issues Involved:
1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Involvement of independent witnesses during the search.
3. Delay in sending the sample for chemical examination.
4. Applicability of the principle of parity in sentencing.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The appellant contended that there was no strict compliance with Section 50 of the Act. Section 50 mandates that when an officer is about to search any person, they must inform the individual of their right to be searched in the presence of a Gazetted Officer or a Magistrate. The Court noted that the appellant was given the option to be searched by a Gazetted Officer, and he chose the former. Subsequently, the search was conducted by the DSP, a Gazetted Officer, thus complying with Section 50. The Court emphasized that Section 50 applies only to the personal search of an individual and not to the search of bags or containers carried by the person. This interpretation aligns with precedents such as Madan Lal vs. State of Himachal Pradesh and State of Himachal Pradesh vs. Pawan Kumar, which clarified that Section 50 does not extend to the search of items like bags or containers.

2. Involvement of independent witnesses during the search:
The appellant argued that no independent witnesses were included during the search, making the evidence unreliable. The Court acknowledged that while it is preferable to have independent witnesses in such cases, it is not an absolute requirement. The prosecution demonstrated that efforts were made to include independent witnesses, but none were willing to participate. The Court held that the absence of independent witnesses does not necessarily invalidate the search and seizure if the testimony of the official witnesses is credible and reliable. The testimonies of the prosecution witnesses, including the DSP and other police officials, were found to be trustworthy, and the evidence was deemed sufficient to uphold the conviction.

3. Delay in sending the sample for chemical examination:
The appellant raised the issue of a 15-day delay in sending the sample for chemical examination, arguing that it compromised the integrity of the evidence. The High Court had previously addressed this issue, concluding that the delay was adequately explained by the prosecution. The sample was received in a sealed cover, and there was no evidence of tampering. The Supreme Court upheld this finding, affirming that the delay did not affect the evidentiary value of the sample or the chemical examination report.

4. Applicability of the principle of parity in sentencing:
The appellant contended that his sentence should be reduced based on the principle of parity, as the co-accused Randhir Singh received a lesser sentence. The Court explained that the principle of parity applies when co-accused are convicted in the same trial and their circumstances are similar. In this case, Randhir Singh was convicted in a separate trial arising from a different FIR, and his sentence was altered by the High Court in a separate judgment. Therefore, the principle of parity was not applicable to the appellant's case. The Court emphasized that sentencing should reflect the individual circumstances and culpability of each offender, and there was no justification for altering the appellant's sentence based on the principle of parity.

Conclusion:
The Supreme Court found no merit in the appellant's contentions and upheld the conviction and sentence imposed by the lower courts. The appeal was dismissed, affirming the rigorous imprisonment of ten years and a fine of Rs. 1,00,000, with an additional one-year imprisonment in case of default in payment of the fine.

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