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TMI Blog2017 (5) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... ereof, they were further ordered to undergo simple imprisonment for a period of one year each. 2. In nutshell, the facts giving rise to this prosecution are that on 07.01.2009, Inspector Jagdeep Singh (PW-7), the Investigating Officer of the case received the secret information that accused-appellant no.1-Wardi Chand, accused-appellant no.2-Balbir, accused-appellant no.3-Trilok, accused-appellant no.4-Kuldeep, accused-appellant no.5-Vikas (now deceased) travelling in Qualis vehicle bearing registration no. RJ-24-C- 1987 were carrying contraband in huge quantity. The said vehicle was roaming around Panipat City and they can be apprehended if the 'Nakabandi' is held. On receiving this information, the Investigating Officer entered the Daily Dairy Report no. 6 dated 07.01.2009 Ex.PW-6/A (for short 'D.D.R'). The said information was conveyed to DSP Randhir Singh (PW-8) through EHC Raj Kumar. 3. Inspector Jagdeep Singh along with other police officials started in the Govt. Sumo vehicle bearing registration no. HR-06-N-6798 in search of the said Qualis vehicle and the persons named in the secret information and also for laying the Nakabadi in the area of Police Station, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arcels of the case property along with Qualis vehicle no. RJ-24-C-1987 were taken into possession vide memo Ex.PW6/E, which was attested by the witnesses as well as by DSP. The investigating Officer sent the written information EX.PW3/A to the police station, on the basis of which, the formal FIR Ex.PW3/B was registered. The investigating Officer prepared the site plan of the place of recovery. The accused-appellants were arrested. 4. Thereafter, Inspector Jagdeep Singh produced the accused, witnesses and the articles of the case property before PW-4-Inspector Ram Kumar, the then SHO, Police Station City Panipat. He after verifying the facts affixed his seal bearing impressions 'RK' on the samples and the residue parcels. Thereafter, he directed the Investigating Officer to deposit the articles of the case property in the Malkhana of the Police Station, City Panipat. 5. On 08.01.2009, the Investigating Officer took over the case property and sample parcels etc. from the Malkhana and produced the same before the learned Illaqa Magistrate for compliance of the provisions of Section 52-A of the NDPS Act vide application Ex.PW7/B. He had also prepared the inventory of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S.Malik, Advocate, learned counsel for appellant no.1, Mr. K.S.Dhaliwal, Advocate, learned counsel for appellants no.2 and 4, Mr. Dinesh Sharma, Advocate, learned counsel for appellant no.3, Mr. Randhir Singh, Addl.AG for the State of Haryana and have carefully perused the record of the case. 13. Initiating the arguments, learned counsel for the appellants contended that the recovery is alleged to have been effected from the search of a private vehicle after sunset on the basis of secret information. But, the Investigating Officer has not complied with the mandatory provisions of Section 42 of the NDPS Act as he was required to obtain the search warrant or authorization to carried out the search. He has also not recorded any reason not to do so. Thus, they contended that the violation of the mandatory provisions of Section 42 of the NDPS Act vitiated the conviction. To support their contentions, they relied upon case State of Rajasthan Vs. Jag Raj Singh @ Hansa 2016 (3) R.C.R. (Criminal) 539. 14. They further contended that it is not plausible that the secret information containing all the particulars of the accused can be furnished to the Investigating Officer. The prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (PW-8). He further contended that the search was conducted on the basis of written authorization given by the DSP. So, there is no violation of the provisions of Section 42 of the 19. He further contended that there is no material on record to show that the sample parcels were tampered with at any stage. The sample parcels were sealed with the seal of the Investigating Officer, the SHO and the DSP. All the sample parcels were produced before the learned Illaqa Magistrate, who also found the seals to be intact. Within two days of recovery, the sample parcels were sent to the F.SL., where also the seals were found intact. He contended that as per the worksheet prepared by the F.S.L., the container of the samples is mentioned as "plastic". There appears to be some mistake in the F.S.L. report (Ex.PX). He further contended that the investigating Officer has weighed the samples with pen scale, which is not accurate, whereas in the F.S.L. the electronic digital scale is used. So, the difference of few grams is bound to occur. 20. He further contended that as per the record of the case, no photographs of the case property were taken on 07.01.2009. The photographs were only taken on 08.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Excise and Taxation department; of and above the rank of Teshildars in the Revenue Department and of and above the rank of Deputy Superintendent of Police in Police Department, to exercise the powers specified in subsection( 2) of that section within the area of their respective jurisdiction. As per the aforesaid notification, the Deputy Superintendent of Police is an empowered officer under the provisions of Section 41 (2) of the NDPS Act. The empowered officer under Section 41 (2) of the NDPS Act is competent to authorize any officers subordinate to him, but superior in the rank to a peon, sepoy or constable to arrest a person who has committed the offence under the Act or for the search of a building, conveyance or a place whether by day or by night. PW-8-DSP Randhir Singh has categorically deposed that he had given a written direction Ex.PW6/D to Inspector Jagdeep Singh to take the search of the containers kept in the Qualis vehicle which were in the possession of the accused. PW-7-Inspector Jagdeep Singh has also stated that the DSP had given a written direction Ex.PW6/D to him to take the search of the plastic jars lying in the qualis vehicle in possession of the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case property and the parcels remained in his custody neither he nor anybody else has tampered with the same. PW-2-C. Gulzar Singh has carried the sample parcels to FSL, Madhuban. He also deposed in his affidavit Ex.PW2/A that the sample parcels were neither tampered with by him nor by anybody else during the period it remains in his custody. The investigating Officer has also produced the articles of the case property before the learned Chief Judicial Magistrate, Panipat, who gave her certificate Ex.PW7/E that the seals bearing impressions 'SS' 'RS' and 'RK' were visible on all the parcels. Then, there is the report of the FSL (Ex.PX), wherein it is categorically mentioned that the seals were intact and tallied with the specimen seal as per the Forwarding Authority's letter. Thus, there is no material on record to show that the sample parcels were tampered with at any point of time. The omission on the part of the Chemical Examiner to properly describe the container in the FSL report (Ex.PX) is not a ground to conclude that the sample parcels which were sent to the FSL for examination were tampered with. 27. No doubt, there is difference of weight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales used. Such marginal difference is of no legal consequences to create any dent in the prosecution case particularly where the chain of the link evidence is complete to rule out any tampering with of the sample parcels. 29. The fact that the separate dates have been written on the photographs Ex.PW5/A and Ex.PW5/B is also not such a material contradiction which can render the recovery doubtful, as it does not go to the root of the case. It appears to be some mistake on the part of the police officials in writing the date over the photographs. These photographs were even produced before the Chief Judicial Magistrate, Panipat, which is evident from her order Ex.PW7/E. Moreover, the contradiction of the date in one document cannot be made the basis to make all the proceedings suspicious. 30. No doubt, even though the recovery has been effected on the basis of the secret information and at a public place, but no independent witness has been associated. But, it is not a case where no efforts have been made by the Investigating Officer to associate the independent witness. Even, in the ruqa Ex.PW3/A, it has been mentioned that despite efforts no public witness could be joined. PW-6- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it the prosecution version. 31. Thus, from the evidence brought on record by the prosecution, it is established beyond shadow of reasonable doubt that the accused-appellants were found in conscious possession of total 21 kg 700 gms of opium without any permit. 32. Faced with this situation, learned counsel for the appellants contended that the appellants are poor persons. They are in custody for the last more than eight years. They have never been convicted for any offence under the NDPS Act prior to this case. So, they deserves the leniency in the matter of sentence. 33. We have duly considered the aforesaid plea. 34. From the statements of the accused-appellants recorded by the learned Judge, Special Court, Panipat on the quantum of sentence, it comes out that all of them have responsibilities towards their family members. The custody certificates produced by the learned State counsel show that none of the appellant was earlier convicted under any of the provisions of the NDPS Act. Accused-appellant Balbir has already undergone the actual sentence of seven years ten months and ten days and after adding remission, he has undergone total sentence for a period of eight years ten ..... X X X X Extracts X X X X X X X X Extracts X X X X
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