TaxTMI 
TaxTMI 
2010 (2) TMI 1051
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.... escape. However, the police over-powered them as their activities were found suspicious. Thereafter, they were served with a notice under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the Act') vide memo (Ex.PD) giving an option to them to be searched either by the Gazetted officer or the Magistrate. They signed the memo by making the choice to be searched by the Gazetted officer and they were arrested by the Head Constable Raja Ram and C-1 Gian Chand. Both of them were produced before the then D.S.P., Pehowa, Shri Paramjit Singh Ahalawat who is a Gazetted Officer, and on his direction, the bag that they were carrying was searched before him. The bag that was carried by the appellant on his shoulder was found to be containing 500 grams of charas wrapped in wax paper. Out of that, 50 grams of charas was taken as sample. Thereafter, the sample and residue were sealed separately with seal `MR' of the Investigating Officer and `PSA' of the D.S.P. Seal MR was handed over to HC Raja Ram while seal `PSA' was retained by the D.S.P. himself. FIR was registered being Case F.I.R. No. 14 dated 24.1.1996 and the property was taken into poss....
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.....1,00,000/-(Rupees one lac). In default of payment of fine, to further undergo rigorous imprisonment for another one year. Appeal before the High Court: 6. Feeling aggrieved by the decision of Additional Session Judge, Kurukshetra, the accused preferred Criminal Appeal No.926-SB of 1997 before the High Court of Punjab and Haryana. 7. Apart from reiterating the contentions canvassed before the learned Sessions Judge, the learned counsel for the accused-appellant had also contended that there was delay of 15 days in sending the sample for chemical examination to FSL, Madhuban (Karnal) and no explanation is given by the prosecution for the delay caused. The High Court while considering this issue has concluded that the delay is properly explained by the prosecution. It has further observed that, the statement of the witnesses and the report of the FSL, Madhuban shows that the sample was received in sealed cover and there was no tampering of the sample, and therefore, the said FSL, Madhuban Report must be held to have full evidentiary value. Appeal: 8. Before us the learned counsel for the appellant contended that the prosecution has failed to establish the guilt of the accused ; ....
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....r IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation.--For the purposes of this Section, the expression "public place" includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to the public." 11. Section 42 of the Act reads as under : "Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is embowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken do....
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....tion, without informing the accused of such a right may not vitiate trial, but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction is solely based on the possession of the illicit article, recovered from his person, during such search. (IV) The investigation agency must follow the procedure as envisaged by the statute scrupulously and failure to do so would lead to unfair trial contrary to the concept of justice. (V) That the question as to whether the safeguards provided in Section 50 of the Act have been duly observed would have to be determined by the court on the basis of the evidence at the trial and without giving an opportunity to the prosecution to establish the compliance of Section 50 of the Act would not be permissible as it would cut short a criminal trial. (VI) That the non-compliance of the procedure i.e. informing the accused of the right under sub-Section (1) of Section 50 may render the recovery of contraband suspect and conviction and sentence of an accused bad and unsustainable in law. (VII) The illicit article seized from the person of an accused during search conducted without ....
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....he body or 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 said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." After discussion on the interpretation of the word `person', this Court concluded: "that the provisions of section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which (the accused) may be carrying" The court further observed : "In view of the discussion m....
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....es is not absolute. If after making efforts which the court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence. In the present case, both the trial court and the High Court by applying recognized principle of evaluation of evidence of witnesses has rightly come to the conclusion that the appellant was arrested and Charas was recovered from the possession of the appellant for which he had no licence. We find no good reason to differ from that finding. 17. The learned counsel for the appellant further contends that the sentence of ten years rigorous imprisonment deserves to be modified and the accused deserves to be acquitted on the ground of parity as the sentence of other accused Randhir Singh, who was searched on 24.1.1996 and convicted by the additional Session Judge for being in possession of one Kil....
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....e must strive for is an approach to sentencing whereby sentences for similar offences committed by similar offenders in similar circumstances are understandable when viewed together, particularly in cases involving joint ventures." Also the observation of the Court of Appeal Alberta in the case of Wahby v The Queen, [(2004) WASCA 308 2004 WL 3061688] whereby, the Court quoted the explanation given in the case of Goddard v The Queen, [(1999) 21 WAR 541], is relevant for the discussion in present case: "In considering the application of the principle, all the circumstances of the case are to be taken into account; those concerned with the commission of the offence and those which are personal to the offender before the court and the co-offender. Where there are differences, as almost inevitably there will be, true parity will be produced by different sentences, each proportionate to the criminal culpability of each offender, bearing in mind, as is often said but is worth repeating, that sentencing is not and should not be a process involving a search for mathematical precision, but is an act of discretion informed by the ....