9911796707
TMI Blog2001 (2) TMI 1004X X X X Extracts X X X X X X X X Extracts X X X X ..... prisonment for 10 years and a fine of Rs.One lac, in default of payment of fine further rigorous imprisonment for 5 years, the appellant has preferred this appeal. The accused was charged under Section 15 of the N.D.P.S. Act. For proving the same, prosecution has examined P.W.2. Ishwar Singh, SI who on 12th January 1986 at about 5.25 p.m. was present on platform No. 1 of Railway Station, Karnal for checking smuggling and other anti-social elements. At about 5.25 p.m. Kalka passenger train arrived at Karnal from the side of Panipat and halted at platform No. 1. It is his say that when he was checking a second class compartment, the appellant who was sitting in the compartment became panicky and left the train from the door towards the side ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med his superior officer about the seizure and its quantity. He has denied the suggestion that accused who was a rikshaw puller was falsely implicated in the case. He has also denied the suggestion that accused asked to be searched in presence of Magistrate or other superior officer. Prosecution has also examined P.W. 1 Harbans Lal, a panch witness. It is his say that on the date of incident he was at the railway station to see off his sister and brother in law. At that time, he noticed the accused alighting from the train on seeing the police. Therefore, accused was nabbed by the police in his presence. The police found that the accused was carrying poppy straw placed in polythene bag which on weighment was found to be 7 k.g. The police t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9) 6 SCC 172]. In Kalema Tumba (supra) this Court considered the mandatory requirement of Section 50 of NDPS Act and held that 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 presence of a gazetted officer or a magistrate. The Court further held that in view of the decision in the case of Baldev Singh (supra) the decision rendered by this Court in State of Punjab v. Jasbir Singh [(1996) 1 SCC 288] wherein it was held that though poppy husk was recovered from the bags of the accused, he was required to be informed about his right to be searched in presence of a gazette officer or a magistrate stood overruled. In facts of that case the Court held that Heroine was found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under sub-section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S. Act would be applicable only in those cases whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk. In the result, the appeal is allowed and the impugned judgment and order passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
