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TMI Blog2015 (8) TMI 1117X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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. - Crl Appeal-S No. 1132-SB of 2015 (O&M) - - - Dated:- 29-5-2015 - Surinder Gupta, J. For the Appellant : Mr Gaurav Mohunta, Adv For the Respondent : Mr P S Sullar, DAG JUDGMENT Surinder Gupta, J. Appellant Zile Singh was convicted for the offence punishable under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to undergo rigorous imprisonment for five years and to pay a fine of ₹ 40,000, in default thereof, to undergo further imprisonment for a period of two years. 2. As per the prosecution case, Sub Inspector Ram Chander of Police Stati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed SI/SHO Vijender Singh as PW1, Head Constable Dharam Singh as PW2, ASI Parvesh Kumar as PW3, Sub Inspector Ram Chander, Investigating Officer as PW4, Constable Nain Pal PW5, Head Constable Ramesh Chander PW6 and Shri Sanjay Bishnoi, Tehsildar, Gohana as PW7. 7. On completion of prosecution evidence, statement of appellant under Section 313 Cr.P.C. Was recorded, wherein he refuted the allegations levelled against him and pleaded his false implication. He did not examine any witness in defence. 8. During the course of arguments, the defence counsel raised following points before the trial Court:- (i) the prosecution case suffers from material discrepancies; (ii) SI Ram Chander being complainant, was not entitled to investigate the case; (iii) no independent witness was joined during investigation of the case; and (iv) the provisions of Section 50 NDPS Act were not complied and the offer of search given to the appellant suffered from material discrepancy to the effect that he was not apprised to get himself searched before a Magistrate. 9. All the above contentions raised by learned defence counsel were discarded by the trial Court. 10. Learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at about 2.30 PM and reached the spot within 15 minutes while SI Ram Chander PW4 had stated that they reached Bus Stand of village Bichpari at about 03.30 PM and received secret information after 15 minutes. PW2 Dharam Singh stated that Constable Suresh Kumar was sent to village to bring some respectable persons to the spot, who returned and informed that nobody from the village was ready to join the investigation, while SI Ram Chander PW4 had deposed that Constable Suresh was sent to the village to bring Sarpanch, Chowkidar or Lamberdar only but he on return informed that they were not available in the village. PW2 HC Dharam Singh stated that they remained at the spot upto 07.45 PM while SI Ram Chander PW4 had stated that they returned from the spot at about 07.00 PM. The above discrepancies were rightly discarded by the trial Court terming the same as minor discrepancies. The material fact is that the appellant was apprehended on 11.10.2003. The discrepancies about the time when the secret information was received and when the accused was apprehended are not material discrepancies which go to the root of the case or render the testimony of the prosecution witnesses unworthy of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used and lodged the report, can be said to be a 'complainant' only in a technical sense. 17. In view of the above settled proposition of law, this argument of learned counsel for the appellant that case of the prosecution suffers on this account is also without any merit and this argument was also rightly rejected by the trial Court. Non-joining of independent witness:- 18. Learned counsel for the appellant has argued that the independent witnesses from the public were available nearby but were not joined in the investigation. He has relied upon the observations in case of Swaroop Singh Vs. State of Haryana 2014(2) RCR (Criminal) 571 and Ajaib Singh Vs. State of Punjab 2014(1) DC (Narcotics) 457 . 19. In the case in hand, the police party was present at the Bus Stand, Bichpari and on receipt of secret information, immediately rushed to the spot, where the appellant was allegedly selling the narcotics. One Head Constable was sent to nearby village to call an independent witness but he returned empty handed and told that nobody was willing to join the investigation. The prosecution version is supported not only by the Investigating Officer but also by Head Constab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss box as PW7 and fully supported the prosecution case and nothing could be brought out in his cross-examination to shatter the prosecution story. His testimony, being a Magistrate as well as responsible gazetted officer carries weight of an independent witness and cannot be discarded on the mere ground that the prosecution has failed to examine any independent witness. It was also disclosed in the statement of prosecution witnesses that attempts made to join the independent witness could not bear any fruit as nobody was willing to join the police party. Otherwise, it is usually found that independent witnesses avoid joining the police party for the reasons that nobody wants to invite wrath of a co-villager or a dealer in narcotics as for everyone it is the peace and security of himself and his family members, which is of paramount importance. 22. The Hon'ble Division Bench of this Court in the case of Ramesh Kumar Versus State of Punjab, 2013 (4) RCR (Criminal) 320 , has observed that the testimony of official witnesses cannot be discarded until it is proved that they have any animus or hostility against the accused for his false implication. While discussing the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the sample is not fatal to the case of the prosecution. HC Ramesh Chander, with whom the case property was deposited by SI Ram Chander, while appearing as PW6, has stated that he kept the case property intact during the period it remained in his possession. He was not even cross-examined on this point by the defence counsel. Constable Nain Pal, who had taken the sample to the office of chemical examiner, while appearing as PW5 has stated by way of his affidavit Ex.PF that he kept the sample intact during the period it remained in his custody. 26. In view of the above circumstances the delay in sending the samples to the chemical examiner pales into insignificance and the argument of learned counsel for the appellant, in this respect, is rejected. Non-compliance of Section 42 NDPS Act. 27. The provisions of Section 42 NDPS Act relates to the contraband kept concealed in a building, conveyance or enclosed place. Reference can be made to KrishanKanwar (Smt.) Alias ThakuraeenVs. State of Rajasthan 2004 (2) SCC 608 . 28. Section 42 (2) NDPS Act applies to the information received by the police qua one of three places mentioned in Section 42 (1) (a) NDPS Act. The informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Act. We may, however, add that while considering the question of compliance with Section 50 of the NDPS Act, the Constitution Bench in Baldev Singh (supra) considered the provisions of Section 41 as well. It observed as under :- '8. Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-section (2) the power has also been vested in gazetted officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force, empowered in that behalf by a general or special order of the State Government to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or to search any person or conveyance or vessel or building etc. with a view to seize any contraband or document or other article which may furnish evidence of the commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search.' 18. Although the Constitution Bench did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to inform the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to inform the suspect about the existence of his said right would cau ..... 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