TaxTMI 
TaxTMI 
TaxTMI 
2017 (12) TMI 632
X X X X Extracts X X X X
X X X X Extracts X X X X
....ridge in connection with nakabandi, then at 3.15 PM, DSP Amarjit Singh Bajwa came there along with his gunman to check duties. It is alleged that in the meantime a Maruti car bearing registration No.PB-26-A-8118 came from the direction of village Heran which was signaled to stop, in which there were two occupants. Upon inquiry the driver disclosed his name as Jasvir Singh and the passenger sitting by his side disclosed his name as Mangal Singh. One Baldev Singh came at the spot and was associated with the police party. The DSP, after introducing himself to the aforesaid two persons, told them that he is a Gazetted Officer and since it was suspected that they were carrying some narcotics and their search is to be conducted, therefore as to whether they wanted their search to be conducted in his presence or any Magistrate. Both the said persons reposed confidence in him and their statements to the said effect were recorded. Upon their search, both the said persons were found to be carrying opium wrapped in a glazed paper which was tied around their waists with the help of a cloth. Out of the opium recovered from each of the two persons, two samples weighing 10 grams each were separat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....om which the accused had been apprehended, deposed that accused Jasvir Singh had taken his car from him on 7.3.2009 on the pretext that he was to attend a marriage along with his children and that later he came to know that his car had been detained by the police. PW-6 Harbans Singh stated that Amarjit Singh had handed over his car to Jasbir Singh in his presence as Jasbir Singh had asked for the car in order to attend a marriage with his children and that after three days he came to know that opium had been recovered from the car. PW-7 MHC Mohinderpal tendered his affidavit Ex.PR in evidence wherein he deposed that SI Dev Raj had deposited the case property with him on 9.3.2009 and that he had handed over the sample parcels to HC Bakshish Singh on 13.3.2009 for depositing the same with Chemical Examiner which were deposited. He further deposed that as long as the sample parcels remained in his possession, the same were not tampered with. PW-8 SI Dev Raj deposed that on 9.3.2009 the case property was produced before him and after verifying the facts he affixed his seal on the case property and deposited the same with the MHC Mohinderpal. He further deposed that upon receipt of ruqa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....missions addressed before this Court and with able assistance of learned counsel, have also perused record of the case. 11. The foremost submission on behalf of appellants is that though an independent witness namely Baldev Singh is stated to have been associated at the time of recovery, but the prosecution for reasons best known to it has chosen not to examine him, which creates serious doubt on the case of the prosecution. In the present case, the accused had been apprehended in presence of the DSP and other police officials including SI Avtar Singh. The aforesaid witnesses had conducted the search in discharge of his official duties. There is nothing on record to suggest that he had any enmity with the accused so as to implicate them falsely. There is no mandate of law that no recovery can be effected in the absence of an independent witness. Hon'ble the Supreme Court, in (2013) 6 SCC 595 Kashmiri Lal Vs. State of Haryana, held as follows: "That apart, there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forwar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to 9.3.2009. The aforesaid contention is thus devoid of merits and is rejected. 14. It has next been contended that there is a delay of 4 days in sending the samples for chemical examination and that while the recovery is stated to have been effected on 9.3.2009. The sample was deposited with Assistant Chemical Examiner on 13.3.2009. The learned counsel has drawn the attention of this Court to the cross-examination of PW-1 SI Avtar Singh, PW-2 HC Rajbir Singh and PW-3 DSP Amarjit Singh Bajwa wherein they have admitted that seals on the parcels of opium produced in the Court from Malkhana are somewhat damaged. 15. We have considered the aforesaid submission. The seals which are affixed on the parcels of recovered contraband are affixed with the help of 'lak' which is a brittle material and there are chances that during handling, the said seals crack down a bit. However, in the present case a perusal of the report of Assistant Chemical Examiner (Ex.PP) shows that the Assistant Chemical Examiner has specifically recorded therein that the seals on the sample parcels were intact and tallied with the sample seals. As such, even if some of the seals affixed on the parcels containing bul....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t the DSP, after introducing himself as a gazetted officer extended offer in terms of section 50 of NDPS Act to each of the accused separately in the following manner: Q: " I, Amarjit Singh Bajwa am posted as DSP, Sub-Division, Nakodar and am a Gazetted Officer of State of Punjab. I have a suspicion that you are possessing some narcotics. Whether you want your search to be effected from me or from some Magistrate for which you have a legal right." Answer : I have full faith in you. You may conduct my search. " 18 In order to examine the propriety of aforesaid offer, it is apposite to bear in mind the provisions of Section 50 of NDPS Act, which read as follows: 50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused. (3) That a search made, without informing the person of his right may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article. (4) The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duty observed would have to be determined by the Court on the basis of evidence led at the trial. (6) Without expressing any opinion whether the provisions of Section 50 are mandatory or directory, it was held that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That any recovery made in violation of Section 50 of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evant extract reads as follows: "Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf." 25. The following facts would be relevant for considering as to whether in the present case, the provisions of section 50 have been complied with in true spirit so as to meet with the requirements of law: (i) the DSP had introduced himself to be a gazetted officer before extending the offer of being searched in his presence or in the presence of a Magistrate; (ii) the DSP is not the recovery officer/investigating officer in the present case. SI Avtar Singh is the recovery officer, who was heading the police party which was present at the spot in connection with nakabandi. The DSP had infact joined the police party later; (iii) It is also settled that once the accused exercises option in terms of section 50, then it is for the authorised officer to take the person detained either before a gazetted officer or a Magistrate, depending upon convenience. In 1999 (1)RCR (Crl) 573 Raghbir Singh v....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e examined in light of its factual position and the evidence on record. In the present case the DSP who had joined the police party headed by SI Avtar Singh, having specifically extended offer of search before Magistrate in addition to be searched before himself being a gazetted officer, and the accused being made aware of his right in this context, the accused can not be said to have been prejudiced in any manner. The position might have been different if the offer of search before Magistrate had not been extended at all, in which case the burden on the prosecution to prove proper compliance of section 50 would have been much heavier. 28. The judgment cited by learned counsel for the appellant i.e. Sewak Singh's case (supra) would not be relevant in view of the position of law laid down by Hon'ble the Supreme Court as referred to above. 29. In view of the discussion made above, we do not find any force in the contention raised on behalf of the appellant regarding non-compliance of Section 50 of NDPS Act. 30. PW-1 SI Avtar Singh and PW-2 HC Rajbir Singh stated consistently regarding the factum of recovery of 4kgs of opium from each of the two accused. PW-3 DSP Amarjit Si....