2016 (6) TMI 310 - HC - Indian Laws

Seeking modification in the sentence order - undergo rigorous imprisonment for three years and pay fine of ₹ 10,000/-, in default thereof - Possession of 130 grams of heroine - Non-compliance of Section 50 of the NDPS Act, 1985 - Held that - Since the accused were not informed about their right of search, therefore, the search is otherwise bad in the eyes of law. Moreover, the manner of search and obtaining consent memo is also doubtful. It is not clear whether ASI Ajaib Singh gave the offer of search to the accused in English or it was SI Gurwinder SIngh, who himself gave the offer of search and communicated with the accused. Admittedly, the accused are Nigerian nationals and they do not understand Hindi or Punjabi. Then the statement of ASI Ajaib Singh shows that on apprehension of accused Alexander, he took out the polythene/envelope from the left pocket of his trouser and then produced the accused and the polythene packet before the SI Gurwidner Singh, whereas SI Gurwinder Singh has stated that he himself conducted the search and took out the polythene packet from the left pocket of the trouser of the accused. If the statement of ASI Ajaib Singh is accepted, that would mean that before giving the offer of search after or before apprising the accused of their right of search, the search was already conducted by ASI Ajaib Singh, after he took out a polythene packet from the left pocket of the accused Alexander. This would mean that the compliance of provisions of Section 50 of the NDPS Act, 1985, was not made and the search is defective. Non-compliance of provisions of Section 42 of the NDPS Act, 1985 - Police received information on the midnight of 3/4.7.2009 and the said information was not reduced into writing and that the ruqa was sent to the police station, which registered the FIR - Whether the ruqa amounts to compliance of provisions of Section 42 of the NDPS Act, 1985 - Held that - the matter was recently examined by the Apex Court in Darshan Singh Versus State of Haryana 2016 (3) TMI 1037 - SUPREME COURT , a distinction has to be made about non recording of secret information separately and recording of secret information in the FIR. The secret information is required to be separately recorded. Non-examination of independent witness - Held that - it is very difficult on the part of the police to obtain the services of an independent witness at the time of effecting recovery of narcotics and many times, the witnesses, if joined during investigation, are not willing to come forward for fear of reprisal by the accused. Therefore, non examination of independent witness is not material. Tampering of case property - Held that - the Station House Officer is to handle many case properties. There were two other seals i.e. of DSP (D) and of the Investigating Officer. There is no evidence on file that the case property was ever tampered with, nor it is shown that despite the fact that the case property was ultimately sent on 10.7.2009, there was any tampering with the case property. Sample taken before the Court, but the same was not produced - Held that - this fact itself is not sufficient to throw out the prosecution case. Similarly, if while complying with the provisions of Section 52-A of the NDPS Act, 1985, the photographs were not taken, it would not be fatal to the prosecution case. Moreover, in this case, according to the prosecution, four persons were arrested from the spot. From the three persons, similar quantity i.e. 130 grams of heroine was recovered, which rather appears to be strange. This fact coupled with the discussion above makes the prosecution case doubtful. As the prosecution could not prove its case beyond all reasonable doubts, the impugned judgment of conviction and order of sentence passed by the learned Judge, Special Court, SAS Nagar, Mohali, are set aside. The accused-appellant stands acquitted of the charges framed against him under Section 21 of the NDPS Act, 1985. He be released forthwith, if not required in any other case. - Decided in favour of appellant

Summary

Issues Involved
1. Compliance with Section 50 of the NDPS Act, 1985.
2. Compliance with Section 42 of the NDPS Act, 1985.
3. Examination of independent witness.
4. Possibility of tampering with case property.
5. Non-production of sample before the court.
6. Doubts regarding the prosecution case.

Detailed Analysis

Compliance with Section 50 of the NDPS Act, 1985
The defense argued that there was no compliance with Section 50 of the NDPS Act, 1985. The prosecution's witnesses, ASI Ajaib Singh and SI Gurwinder Singh, provided conflicting statements about who communicated the right of search to the accused and in what language. ASI Ajaib Singh stated that he communicated the right in English, while SI Gurwinder Singh claimed he did it himself. The court found that the accused were not properly informed about their right to be searched in the presence of a Gazetted Officer or Magistrate, rendering the search defective.

Compliance with Section 42 of the NDPS Act, 1985
The defense contended that the provisions of Section 42 were not followed, as the secret information received was not separately recorded in writing. The court referenced the Supreme Court's ruling in Darshan Singh Versus State of Haryana, which clarified that recording the information in the FIR does not fulfill the requirement of Section 42. The court concluded that the failure to separately record the secret information violated Section 42.

Examination of Independent Witness
The defense highlighted that the independent witness, Jaspal Singh, was not examined. The court noted that it is often challenging for the police to secure the cooperation of independent witnesses due to fear of reprisal. Therefore, the non-examination of Jaspal Singh was deemed not material to the case.

Possibility of Tampering with Case Property
The defense argued that the Station House Officer, who sealed the case property, kept the seal with him, raising the possibility of tampering. The court dismissed this argument, stating that there were multiple seals on the case property and no evidence of tampering was presented.

Non-Production of Sample Before the Court
The defense claimed that the sample taken before the court was not produced. The court found this insufficient to dismiss the prosecution's case. Similarly, the court held that the absence of photographs during compliance with Section 52-A of the NDPS Act, 1985, was not fatal to the prosecution.

Doubts Regarding the Prosecution Case
The court noted that similar quantities of heroin were allegedly recovered from the accused, which appeared suspicious. Coupled with the aforementioned issues, this raised reasonable doubts about the prosecution's case.

Conclusion
The court concluded that the prosecution failed to prove its case beyond a reasonable doubt. The appeal was allowed, and the judgment of conviction and order of sentence dated 7.8.2013 were set aside. The accused was acquitted of the charges under Section 21 of the NDPS Act, 1985, and ordered to be released forthwith if not required in any other case.