TaxTMI 
TaxTMI 
TaxTMI 
2011 (2) TMI 1376
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....fficials 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 attested by SI Gurdeep Singh and ASI Satpal Singh. The seal after use was handed over to ASI Satpal Singh (PW5). The appellant could not produce any valid license or permit for possession of the said opium. On personal search, currency notes amounting to Rs. 25 /- was also recovered from the accused and the same was taken into possession vide memo Ex. P1, signed by the appellant. Ruqa Ex. PF was sen....
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....s 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 they were pre - prepared and have falsely implicated the appellant. 7. On the other hand, Mr. H.M. Singh, counsel for the respondent submits as follows: i. The appellant is rightly been convicted under section 18 of the NDPS Act. There are numerous witnesses and evidences to prove his guilt. ii. The appellant was apprehended with contraband by the policy party and he was arrested after the registration of his case....
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....e 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 away from the scene. It was not a case where the prosecution has claimed that the appellant was apprehended on the basis of any earlier information having been given by any secret informer. It was also not a case of trap. In such circumstances, it would not be possible to hold that the appellant has been falsely implicated. 10.The prosecution has offered a plausible explanation with regard to non-joining of the independent witnesses. It wa....
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.... 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/narcotic/NDPS substance is recovered as a consequence of the body search of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted. This Court in the case of Kalema Tumba Vs. State of Maharastra(1999) 8 SCC 257 discussed the provisions pertaining to 'personal search' under Section 50 of the NDPS Act and held as follows; "....... if a person is c....
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....ootwear. 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 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." It has come in evidence that although the body search of the appellant was conducted but no recovery of any narcotic was made. The body search only led to the recovery of Rs. 25/-from his pocket. ....