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TMI Blog2011 (2) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... o pay a fine of Rs. one lac and in default of payment of the same, to undergo rigorous imprisonment for another two years, for having been found in possession of 1 kg and 750 grams of opium without any permit or licence. 2. The prosecution story is that on 23rd September, 1994 at around 2.30 PM, Inspector Ram Pal Singh (PW4) along with SI Gurdeep Singh, ASI Satpal Singh (PW5) and other officials were on duty and coming from village Hassanpur to village Mirsapur. After reaching near the bridge of canal minor while going on kacha path, the police party noticed the appellant coming from the bank of canal. On seeing the police party, the appellant tried to run away but on suspicion he was apprehended. On enquiry, he informed the police about his name, parentage, address etc. At that time, he was carrying a bag (thaili) in his right hand. PW4 suspected that that the appellant was carrying some incriminating articles in his bag. The search was conducted and the police party recovered 1 Kg and 750 gram opium from his custody. 3. Ten grams of opium was put into a tin container as a sample. It was duly sealed. The entire case property was taken into possession vide memo Ex. PD atteste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... searching for opium and illicit arms, and that he had relations with terrorists. Thereafter, the police took the appellant to CIA staff. He was tortured by using third degree methods. Then he was falsely implicated in this case. The Courts below have also disregarded the deposition of DW-1, Sarpanch Narang Singh for no valid grounds. iii. Section 50 of the NDPS Act is a mandatory provision but the same was never followed in the present case. The appellant was never given any option nor taken to the nearest Gazetted Officer or Magistrate for his search. iv. There is a delay of twelve days in sending the sample for the chemical examination. The prosecution has not been able to give any reasonable justification for such delay. v. The consent statement made by the appellant is in-admissible under section 25 of the Indian Evidence Act, 1872. vi. There are vital lapses in the present case. The version deposed by PW -3 is inconsistent with the deposition of PW -4. vii. The prosecution has not been able to prove as to from where they got weighing scale, tin dabba and dabhi. The police also could not give any valid reason as to why they had gone to the spot. This shows that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or a decision shocks the conscience of the Court. (iv) When the evidence adduced by the prosecution fell short of the test of reliability and acceptability and as such it is highly unsafe to act upon it. (v) Where the appreciation of evidence and finding is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of the evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record. 9. The first submission of Mr. Ujjal Singh, learned counsel, is that the appellant has been falsely implicated. We are unable to accept this submission. Merely because the prosecution has not examined any independent witness, would not necessarily lead to the conclusion that the appellant has been falsely implicated. It was clearly a case where the police personnel had noticed the odd behaviour of the appellant when he was walking towards them on a path which led to village Mirzapur. It was the display of hesitation by the appellant on sighting the police party that Satpal Singh (PW5) became suspicious. On seeing the police personnel, the appellant tried to run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh is that there has been non compliance of Section 50 of the NDPS Act, in that requisite option was not given to the appellant, as to, whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. We are unable to accept the aforesaid submission. Inspector Ram Pal (PW4) has clearly stated that the option was duly given to the appellant. The appellant had, in fact, signed on the consent statement expressing his confidence to be searched in presence of the aforesaid witness. Similarly, Satpal Singh PW5 has also stated that before affecting the search, the accused/appellant was given the necessary option as to whether he wanted to be searched before a Gazetted Officer or a Magistrate. This witness also stated that the appellant reposed his confidence in Inspector Rampal. In such circumstances, it cannot be held that there was non compliance with Section 50 of the NDPS Act. 12. This apart, it is accepted that the narcotic/opium, i.e., 1 kg. and 750 grams was recovered from the bag (thaili) which was being carried by the appellant. In such circumstances, Section 50 would not be applicable. The aforesaid Section can be invoked only in cases where the drug/na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word person would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case. The trial court as well as the High Court, on examination of the evidence on record, concluded that the case property was handed over by Ram Pal (PW4), Investigating Officer to the SHO Inspector Rachhpal Singh (PW3). This witness checked the case property and affixed his own seal bearing impression RS on the case property as also on the sample impression of the seal. The case property was deposited with MHC Sudh Singh on the same day. Sudh Singh appeared as PW1 in court and tendered his affidavit Ex. PA to the effect that the case property including the sample parcel and the specimen impression of the seal, duly sealed and intact was deposited with him by Ram Pal, PW4, on 23rd September, 1994. He also stated that he handed over the sample parcel, duly sealed and sample impression of seal to Constable Chet Ram on 4th October, 1994 for depositing the same in the office of Chemical Examiner. It was further stat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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