TaxTMI 
TaxTMI 
TaxTMI 
2016 (6) TMI 310
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....Mohali) alongwith fellow officials was present near Ambedkar Nagar in between Sector 70 and 71, Mohali, when he received a secret information that Nigerian citizens, namely, Alex son of Ajle, Favor son of Okko, Alexander son of Monye and Paul son of Uzemudia, who are presently residing in MIG House No. 2711/B, Sector 70, Mohali, are indulging in the sale of heroine, which is purchased from outside. They meet their customers in odd hours in the parks etc. and if a search is conducted in the parks of Sector-70 and 71, SAS Nagar, Mohali, then they can be apprehended with the large quantity of heroine. As the information was found to be credible, ruqa/information (Ex.PW6/A) was sent to the police station, on the basis of which formal FIR (Ex.PW6/B) was registered. Thereafter, the checking in different parks of Mohali was conducted. On 4.7.2009, at about 9:50 AM, Inspector Gurwinder Singh joined Jaspal Singh son of late Bachan Singh, resident of House No. 235, Phase-3-A, Mohali, as independent witness and reached the park of Sector-70, Mohali. There, four Nigerian nationals were found sitting. On seeing the police party, all the four said Nigerians tried to run away in different directi....
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....r Section 313 Cr.P.C., the accused denied the evidence led against him as incorrect and stated that no recovery was effected from him and has been falsely implicated. The accused did not lead any evidence in defence. After hearing the prosecution, defence and going through the evidence, the learned Judge, Special Court, SAS Nagar, Mohali, convicted and sentenced the accused, as aforesaid. I have heard the learned counsel for the appellant, the learned State counsel and have also carefully gone through the file. The learned counsel for the appellant has assailed the prosecution story on the ground that no compliance of provisions of Section 50 of the NDPS Act, 1985, was made. According to the learned counsel, the present appellant Alexander was apprehended by ASI Ajaib Singh (PW4). In examination-in-chief, ASI Ajaib Singh has stated that after his apprehension, he produced the accused Alexander before SI Gurwinder Singh and that SI Gurwinder Singh, after giving his introduction, gave the option of getting himself searched through him in English. The witness further stated that he told the accused and other persons in English that there is suspicion against them that they are in p....
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...., who, according to him, had communicated with the accused in English, would show that the accused were not told that accused have legal right to get the search conducted from a Gazetted Officer or a Magistrate and that if they desire, a Gazetted Officer or a Magistrate can be called at the spot. Since the accused were not informed about their right of search, therefore, the search is otherwise bad in the eyes of law. Moreover, the manner of search and obtaining consent memo is also doubtful. It is not clear whether ASI Ajaib Singh gave the offer of search to the accused in English or it was SI Gurwinder SIngh, who himself gave the offer of search and communicated with the accused. Admittedly, the accused are Nigerian nationals and they do not understand Hindi or Punjabi. Then the statement of ASI Ajaib Singh shows that on apprehension of accused Alexander, he took out the polythene/envelope from the left pocket of his trouser and then produced the accused and the polythene packet before the SI Gurwidner Singh, whereas SI Gurwinder Singh has stated that he himself conducted the search and took out the polythene packet from the left pocket of the trouser of the accused. If the state....
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....ommitted any offence punishable under Chapter IV. Subsection (2) of Section 41 refers to issue of authorization for similar purposes by the officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence, etc. Subsection (1) of Section 42 of the NDPS Act lays 7 of 10 down, that the empowered officer, if he has a prior information given by any person, should necessarily take it down in writing, and where he has reason to believe from his personal knowledge, that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building, etc. he may carry out the arrest or search, without warrant between sunrise and sunset and he may do so without recording his reasons of belie. The two separate procedures noticed above are exclusive of one another. Compliance of one, would not infer the compliance of the other. In the circumstances contemplated under Section 42 of the NDPS Act, the mandate of the procedure contemplated therein will have to be followed separately, in the manner interpreted by this Court in Karnail Singh's case (supra) and the same will not be assumed, merely becau....