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TMI Blog2004 (8) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... of the arms act on the ground that the sanction of the District Magistrate has not been duly proved by the prosecution. Aggrieved by the same, the appellants preferred appeals in the High Court of Punjab and Haryana. The appeals were dismissed by the impugned judgment which is somewhat cryptic. 2. The prosecution case is as follows: During the early hours of 2-8-1987, Inspector Sukhdev Singh (PW 1), Station House Officer, Jalalabad PS received a telephonic message from the Commandant, BSF, Jalalabad that a special nakabandi (patrolling) has to be organised. He, along with the other police personnel, went to the BSF Headquarters and after reaching there the Commandant deputed two Inspectors including Inspector Shivpal Singh (PW 2) and three more BSF personnel to accompany PW 1 for the patrolling. The Commandant instructed them to hold the naka at the canal bridge in the vicinity of Machhiwara village as he had some information about smuggling. At 3.30 a.m the patrolling party noticed two persons coming from the direction of Village Tahliwala. When they were challenged, there was a firing from the opposite direction aimed at the patrolling party. In self-defence, the Inspectors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was filed by the Assistant Collector of Customs, Amritsar on 19-10-1987 in the Court of the Chief Judicial Magistrate, Ferozepur together with various documents. After committal by the Judicial Magistrate, Ferozepur, the Additional Sessions Judge, Ferozepur framed charges and proceeded with the trial. 3. The trial court held that the recovery of heroin from the two accused persons was proved beyond reasonable doubt and the presumption under Section 54 of the Act would come into play. The learned trial Judge also held that there was no violation of the mandatory provisions of Sections 41, 42 and 50 of the Act. The evidence of DW 2, the Sarpanch of Village Tahliwala, to the effect that the police took Durgo Bai, the appellant into custody from her house on 9-8-1987, was disbelieved. The learned Additional Sessions Judge convicted and sentenced the accused as per the details already referred to. 4. On appeal, the High Court held that the prosecution case was fully established by PW 1 which has been corroborated by the evidence of PW 2 and other witnesses and that there was no legal flaw which vitiated the trial. 5. The first contention of the learned counsel for the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lages. The general information about the smuggling into India which led the Commandant to organise a nakabandi, cannot be equated to the receipt of information within the contemplation of Section 42(1) of the Act. In any case, we need not dilate on this aspect further as it is Section 43 that is attracted in the instant case but not Section 42. It is not a case of entering into or searching any building, conveyance or enclosed place. 8. The next argument is that Section 50 has been violated inasmuch as search was done without adhering to the conditions laid down in the section. This is again based on the premise that the police officials concerned must be presumed to have acted on the basis of definite prior information. Once this assumption is held to be wrong, the ratio of the decision in State Of Punjab v. Balbir Singh. 1994 3 SCC 299 gets attracted. The legal position has been clarified thus: (SCC pp. 308-09, para 5) But when a police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of CrPC comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 12: (SCC p. 190) 12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Again, at para 57, while summarising the conclusions, it was said: (SCC p. 208) 57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (emphasis in original) 11. It is significant to notice that the prefatory expression acting on prior information has been advisedly used in tune with the law laid dow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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