CIVIL APPEAL None on 8 October 2002

1. To be referred to the Reporters or not?

2. Whether the judgment should be reported in the Digest?

Present: Mr. D.R.Punia, Advocate for the petitioner.

Mr. Amrit Pal Singh Gill, AAG, Punjab.

...

RITU BAHRI, J. (Oral)

This appeal is against the judgment dated08.10.2002 passed by the Judge, Special Court,Nawanshahar whereby the appellant Balbir Singh has beenconvicted under Section 15 of the NDPS Act and sentencedto rigorous imprisonment for a period of one year and a fineof Rs. 1,000/- or in default to further undergo R.I. for twomonths.

The case of the prosecution in brief is that on

15.07.2001, the police party headed by ASI Tarsem Singh,PW-5 and constituted by PW-4 Constable Sandeep Singh,Harkewal Ram and Constable Gian Singh was patrolling thearea for checking the suspected elements. The accused wasspotted coming from the Eastern side of bridge of the canalin village Gail Majari. He was carrying a plastic bag Ex. P-1.He was apprehended and the search was conducted by PW-5ASI Tarsem Singh as he showed confidence in ASI TarsemSingh. The statement was recorded as Ex.PB which wasduly attested by Constable Sandeep Singh, PW-4. Anattempt was made by ASI Tarsem Singh to contact DSPMandir Singh but he was not available. On search of the bag,Ex.P1, it contained 250 grams of poppy husk. It contained 5kg. 750 grams, total 6 kg of poppy husk. Out of the same,250 grams were taken out as a sample. These were sealedand was handed over to PW-4 as Ex.P-C. A rough site planEx.PF was prepared and a ruqa EX.PG was sent to the PoliceStation where upon FIR Ex. PH was recorded. The recoveredarticles were deposited in the malkhana and the accusedwas arrested. The relevant record was deposited with theD.F.S.L. Chandigarh on the same day. Vide report Ex.PJ, theChemical Examiner has concluded that the sample packetcontained poppy husk, the challan was presented. Afterpresentation of challan, charges were framed under Section15 of the NDPS Act.

The prosecution examined C2 Pawanjit Singh, SubInspector Ranjit Singh, HC Surinder Kumar, ConstableSandeep Singh, ASI Tarsem Singh and Tarsem Singh as PW-1to PW-5 respectively.

Statement of the accused was recorded underSection 313 of the Cr.P.C. which made all the allegationsleveled against him and pleaded innocence.

After going through the evidence, it came to aconclusion that prosecution had successfully established theguilt of the accused under Section 15 of the NDPS Act and hewas convicted for one year rigorous imprisonment.

Non-compliance of Section 50 of the NDPS Act isthe main ground of appeal on which the accused was soughtto be acquitted. The recovery was effected on 15.07.2001and the sample was sent to Forensic Science Laboratory on29.07.2001 after the delay of 14 days and on this ground theprosecution story is not liable to be believed.

As far as the non-compliance of Section 50 of the NDPS Act is concerned, reference can be made to thejudgment passed by the Supreme Court in Ajmer Singh vs.State of Haryana 2010(2) JT 175where the Supreme Courtwhile examining the application under Section 50 the NDPSAct in case of search of a bag carried by a person thecompliance of Section 50 of the Act will not be applicable ina case where the search is made from a bag, briefcase,

container etc. In paragraph 13 it has been observed asunder:

“A bare reading of Section 50 shows that it onlyapplies in case of personal search of a person. Itdoes not extend to search of a vehicle or acontainer or a bag or premises (See KalemaTumba v. State of Maharashtra and Anr. (1994(4)RCR (Criminal) 575 : JT 1999 (8) SC 293), State ofPunjab v. Baldev Singh (JT 1994(4) SC 595),Gurbax Singh v. State of Haryana 2001 (1) RCR(Criminal)702 : (2001(3) SCC 28). The language ofsection is implicitly clear that the search has to bein relation to a person as contrast to search ofpremises, vehicles, or articles. This position wassettled beyond doubt by the Constitution Bench inBaldev Singh's case (supra). Above being theposition, the contention regarding non-complianceof Section 50 of the Act is also without anysubstance.”

However, in the facts of the present case, as perASI Tarsem Singh, Investigating Officer of the case hasstated that after capturing the accused, he had soughtoption whether he would be searched by a gazetted officerand he tried to contact the DSP Mandir Singh but he was notavailable. He noted down the option of accused Ex. PB

Crl. Appeal No. 1941-SB of 2002 [ 5 ]

where he has deposed confidence in the said InvestigatingOfficer. Hence, even though the search was made from thebag under the provisions of Section 15 of the NDPS Act werecomplied with and in writing the accused was agreed to besearched by the Investigating Officer, ASI Tarsem Singh.

As per the report of the Director of ForensicScience Laboratory, Punjab, Chandigarh Ex. PJ, the samplewas received seal affixed and it was tallied with thespecimen seal. Therefore, even if the sample was sent afterthe gap of 14 days, it does not rendered to the prosecutionversion doubtful. The said sample was deposited by MHCSurinder Kumar as per the statement while appearing asPW-3.

The petitioner was convicted on 08.10.2002 andwas released on bail by this Court vide order dated12.12.2002.

Counsel for the State on instructions from HCKashmir Singh has informed that the petitioner is facing twoother trials in FIR No. 299 dated 15.12.2008 under Sections15-61-85 of the NDPS Act registered at Police Station Bangaand FIR No.103 dated 1.9.2012 under Sections 15-61-85 ofthe NDPS Act registered at Police Station Rahon.

After going through the Judgment dated 8.10.2002passed by the Judge, Special Court, Nawanshahar, and therecords of the case, it is found that before making search on

the person of the accused, he had given option whether hewould be searched by a Gazetted officer or Investigatingofficer and he deposed his confidence in the InvestigatingOfficer ASI Tarsem Singh as per Ex.PB. This statement hasbeen attested by Constable Sandeep Singh, therefore, thenecessary provisions of Section 50 of the NDPS Act havebeen carried out. The sample which was prepared with 250grams of poppy husk was, as per report of the DirectorForensic Science Laboratory Ex.PA, having a seal affixed onit and it had tallied with the specimen seal. As per thestatement made by MHC Surinder Kumar, ASI Tarsem Singhhad deposited the sample with him as his case property.Therefore, even if there was a delay of 14 days in giving thesample for analyzing to the Director Forensic ScienceLaboratory it is not fatal to the prosecution case. The minordiscrepancies in the testimony of witnesses are liable to beignored with the passage of time. The petitioner is a habitualoffender as informed by HC Kashmir Singh and is facing trialafter his sentence was suspended on 12.12.2012.

The argument that there was no independentwitness is liable to be rejected as the general tendency ofthe public is not to assist with the investigation.

The judgment dated 8.10.2002 passed by Judge,Special Court, Nawanshahar, does not require anyinterference.

The appeal is dismissed.

22.7.2013 Rupi

( RITU BAHRI )

JUDGE