2015 (8) TMI 1117 - HC - Customs

Non-Compliance of condition under which search shall be conducted Appeal against Conviction Appellant was convicted for offence punishable under Section 20(b) of NDPS Act, 1985 and sentenced to undergo rigorous imprisonment and to pay fine Informer apprised police party that appellant was selling charas at that time also and if raid is conducted, charas can be recovered from him After completion of required formalities appellant was charge-sheeted to which he pleaded not guilty and claimed trial Whether provision of NDPS act was complied with Held that - Discrepancies about time when secret information was received and when accused was apprehended are not material discrepancies affecting reliance of prosecution Officer who has seized article, arrested accused and lodged report, can be said to be complainant only in technical sense Admittedly recovery was effected from appellant at public place near watercourse at public place, therefore contention of non-compliance of Section 42, rejected Perusal of notice given under Section 50 reveals that notice is short of compliance, which require to apprise suspect of his right to get his search conducted before Magistrate Mere fact that gazetted officer, who was called at spot to conduct search also happened to be Executive Magistrate, in no manner, fulfill lacuna left by Investigating Officer Having failed to comply with provisions of Section 50, in its true spirit, recovery made from appellant was illicit and vitiate his conviction Therefore, Judgment of conviction and order of sentence recorded by trial Court set aside Decided in favour of Appellant.

Issues Involved:
1. Contradictions in the statements of prosecution witnesses.
2. SI Ram Chander being the complainant was not entitled to investigate the case.
3. Non-joining of independent witnesses.
4. Delay in sending the samples to Forensic Science Laboratory.
5. Non-compliance of Section 42 NDPS Act.
6. Non-compliance of Section 50 NDPS Act.

Issue-wise Detailed Analysis:

1. Contradictions in the statements of prosecution witnesses:
The contradictions pointed out included discrepancies in the timing and actions of the police officers involved. For instance, PW2 Head Constable Dharam Singh stated they received the secret information at 2:30 PM and reached the spot within 15 minutes, while SI Ram Chander (PW4) mentioned reaching the Bus Stand of village Bichpari at 3:30 PM and receiving the information 15 minutes later. Additionally, discrepancies were noted regarding the duration they stayed at the spot. The court deemed these as minor discrepancies that do not affect the material facts of the case, such as the apprehension of the appellant and the recovery of charas.

2. SI Ram Chander being the complainant was not entitled to investigate the case:
The court referred to Section 51 of the NDPS Act and the Supreme Court's ruling in State of Punjab v. Balbir Singh, which allows an empowered officer to conduct the investigation if they come across a person in possession of narcotic drugs. The court concluded that SI Ram Chander, being an empowered officer, was entitled to investigate the case, and this argument was without merit.

3. Non-joining of independent witnesses:
The appellant's counsel argued that independent witnesses were available but not joined. The court noted that attempts were made to join independent witnesses, but they were unwilling to participate. The presence of Tehsildar Sanjay Bishnoi, a gazetted officer, was considered sufficient. The court cited previous judgments, including Ramesh Kumar v. State of Punjab and Sumit Tomar v. State of Punjab, which upheld the reliability of official witnesses in the absence of independent witnesses, provided there was no animosity or hostility against the accused.

4. Delay in sending the samples to Forensic Science Laboratory:
The sample was sent to the chemical examiner 18 days after the recovery, but the seals were intact when received by the FSL. The court referred to the Supreme Court's ruling in Jarnail Singh v. State of Punjab, which stated that a delay of 12 days was not fatal to the prosecution's case. The court found the delay immaterial and not prejudicial to the appellant, as the integrity of the sample was maintained.

5. Non-compliance of Section 42 NDPS Act:
The court clarified that Section 42 NDPS Act pertains to contraband kept in a building, conveyance, or enclosed place, not to a person carrying narcotics in a public place. The court cited Krishan Kanwar v. State of Rajasthan and concluded that non-compliance with Section 42 was not applicable in this case since the recovery was made from a public place.

6. Non-compliance of Section 50 NDPS Act:
The court found that the notice served upon the appellant under Section 50 NDPS Act was insufficient, as it did not inform him of his right to be searched before a Magistrate. The court referred to the Supreme Court's ruling in Vijaysinh Chandubha Jadeja v. State of Gujarat, which emphasized the mandatory nature of informing the accused of their right to be searched before a gazetted officer or Magistrate. The failure to comply with this provision rendered the recovery of the narcotic suspect and vitiated the conviction.

Conclusion:
The court found merit in the appellant's argument regarding non-compliance with Section 50 NDPS Act. The judgment of conviction and order of sentence recorded by the trial court were set aside, and the appellant was acquitted of the charges framed against him.

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