Gopal vs State Of Hry
2022 Latest Caselaw 16286 P&H

     IN THE HIGH COURT OF PUNJAB AND HARYANA
                  AT CHANDIGARH


                          CRA-S-2584-SB-2006 (O&M)
                          Reserved on:08.12.2022
                          Date of Decision: 09.12.2022

Gopal                                                        ...Appellant
                                Versus
State of Haryana                                         ... Respondent


CORAM :       HON'BLE MR. JUSTICE N.S.SHEKHAWAT

Present :    Mr. Vibhor Bansal, Advocate as Amicus Curiae
             for the appellant.

             Mr. Rajinder Kumar, DAG, Haryana.

N.S.SHEKHAWAT, J.

Challenging the correctness and legality of the impugned

judgement dated 08.12.2006 and order of sentence dated 13.12.2006,

passed by the Judge, Special Court, Panipat, whereby, the appellant

had been convicted under Section 18 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter to be referred as 'the

NDPS Act) and sentenced to undergo rigorous imprisonment for four

years and to pay a fine of Rs. 50,000/- alongwith default stipulation,

the appellant has preferred the instant appeal before this Court.

The FIR in the instant case was got registered on

11.10.2005 by the complainant, namely, ASI Vijay Singh, who was

present with other police officials for patrolling and crime prevention

near the outer gate of Bus Stand Panipat and in the mean time, one

person, who was carrying a plastic bag in his right hand came from

the bus stand side and on seeing the police party, he turned back and

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started walking. ASI Vijay Singh with the help of other police

officials apprehended him and on inquiry he told his name to be

Gopal son of Badri Lal resident of village Karawan, Police Station

Pagaria, District Jhalawad (Rajasthan). The complainant expressed

the suspicion that he was carrying some narcotic substance and issued

him a notice under Section 50 of the NDPS Act. The complainant

apprised him of his right to get his search conducted in the presence

of either a Magistrate or a Gazetted Officer and he had legal right to

do so. Gopal and the witnesses appended their signatures on the said

notice and he replied in writing that he want to get his search

conduced in the presence of the Gazetted Officer. On this Virender

Kumar Vij, the Deputy Superintendent of Police, City Panipat, was

telephonically informed and on getting the information, the Deputy

Superintendent of Police, City Panipat, came at the spot alongwith

personal staff on the government vehicle and Gopal son of Badri Nath

was presented before him. In the meantime, the public witnesses were

also requested to join the investigation, but all of them expressed their

helplessness and went away. The Deputy Superintendent of Police

asked Gopal regarding his search and he had given his consent to be

searched by him.

The Deputy Superintendent of Police asked the

complainant to search the plastic bag, which was being carried by

Gopal in his right hand and on this the plastic bag was searched and

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one shawl containing opium wrapped in the polythene was recovered

from the plastic bag kept by the accused in his possession. Two

samples weighing 20 grams each of the opium were taken out and the

remaining quantity was weighed with the pen type weighing machine

and it weighed 910 grams. Both the samples were kept in the plastic

boxes and remaining recovered opium was also kept in a container of

one kilogram and three separate parcels were prepared and were

sealed with the seal of 'BS' and the Deputy Superintendent of Police

also affixed his stamp 'VK' on all the parcels and after affixing the

seal, the seal was handed over to HC Sewa Ram and the Deputy

Superintendent of Police retained his seal with himself. The aforesaid

two parcels of the opium, alongwith the plastic container of opium,

which were duly sealed, the plastic bag and shawl were taken into

possession by the police as evidence and the memos were prepared in

this regard and the witnesses had appended their signatures in this

regard. By keeping 950 gram of opium in his possession, Gopal son of

Badri Lal had committed the offence under Section 18 of the NDPS

Act and consequently ruka was sent to the police station for

registration of the FIR and the senior officers were also informed. On

the statement made by ASI Vijay Singh, the present case was got

registered under Section 18 of the NDPS Act against Gopal Singh of

Badri Lal.

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During the course of investigation, the Station House

Officer, Police Station City Panipat also verified the facts before him.

The case and samples were produced and he sealed the sample and

remainder with his seal 'LS' and retained his seal with himself.

The information under Section 57 of the NDPS Act was

also sent to the senior police officers who ordered the case property to

be deposited with the MHC and the accused was sent to lockup. On

the next date, i.e. 12.10.2005, the complainant produced accused

Gopal alongwith the case property, sample parcels, sample seal and

photographs before the Illaqua Magistrate, Panipat, who issued the

requisite certificate and passed the order for disposal of the case

property. The samples were sent to FSL, Madhuban.

On completion of the investigation, the challan under

Section 18 of the NDPS Act was presented against the

accused/appellant. Even, the accused/appellant was charge sheeted

under Section 18 of the NDPS Act, to which, the appellant pleaded

not guilty and claimed trial.

During the course of trial, the prosecution examined PW1

Virender Kumar Vij, the Deputy Superintendent of Police, who

reached at the spot on getting telephonic information. The recovery

was effected in his presence and he supported the case of the

prosecution completely. The prosecution further examined PW2

Constable Devinder Singh, who had carried the special report of the

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case and delivered the same to the Illaqua Magistrate and higher

police officers. ASI Jai Narayan was examined as PW3, whose

evidence was formal in nature. HC Dharampal was examined as PW4,

who was posted as MHC in Police Station City Panipat on 11.10.2005

and the complainant deposited the case property with him. On

12.10.2005, again, the complainant took parcels alongwith

impressions of seals in order to comply with Section 52 of the NDPS

Act for depositing the same before the Illaqua Magistrate. Again, after

production of the case property before the Illaqua Magistrate, the

same was deposited with him alonwith the seal impressions. On

25.10.2005, he sent the sample parcel to the FSL Madhuban for

analysis. During that period, he did not tamper with the evidence nor

allowed any one to tamper with that. Still further, the prosecution

examined PW5 ASI Mahabir Singh, who recorded the formal FIR

Ex.PB/1, on receipt of ruka Ex.PB. ASI Vijay Singh, the complainant

was examined as PW6, who alongwith other police officials had

apprehended the accused at the spot with the opium and had

supported the case of the prosecution as narrated in the FIR. Still

further, ASI Sewa Ram was examined PW7, who was part of the

raiding team, which had apprehended the accused at the spot and was

also signatory to certain memos, which were prepared at the spot and

was part of the initial investigation. The prosecution examined PW8

Constable Bijender Singh who delivered the special report to the

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Superintendent of Police, the Deputy Superintendent of Police and the

Area Magistrate without any delay. He took the sample on 25.10.2005

to the FSL, after collecting the same from MHC of the Police Station.

Rajinder Kumar, Civil Ahalmad, in the Court of learned Civil Judge,

Civil Judge, Panipat was examined as PW9, who proved on record the

application Ex.PJ and the order dated 12.10.2005 Ex.PJ/1 passed by

the Court of learned JMIC Panipat regarding distruction of the case

property. Lastly, the prosecution examined PW10 Laxman Singh

retired Inspector, who was posted as Inspector/the Station House

Officer in Police Station City Panipat on 11.10.2005. The complainant

alongwith police party had apprehended the accused at the spot and

produced him before Laxman Singh, SHO and he directed the

Investigating Officer to deposit the case property with the MHC and

the accused was ordered to be kept in the police lock-up. He sent a

report under Section 57 of the NDPS Act to the higher officers and

proved the ruka in this case.

After examining ten witnesses, the prosecution closed its

evidence and statement of the accused under Section 313 Cr.P.C., was

recorded. The accused pleaded false implication and stated that he

was apprehended by the police on 10.10.2005 in the night and was

kept in the Police Station as he was not carrying his identity card at

that time. He was working as a labourer in a factory at that time and

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the police told him that he would be left after making necessary

inquiry but the police later falsely implicated him in the case.

The learned counsel for the defence examined DW1

Constable Gulzar, who brought the summoned register No. 19 and 21.

Further DW2 HC Naresh Kumar also produced certain official record

from the police station, i.e. Rapat Rojnamcha dated 11.10.2005 and,

thereafter, the evidence was ordered to be closed.

Learned counsel vehemently contended that there was

material discrepancies in the statements of various witnesses produced

by the prosecution. It was submitted that notice given by the police

was defective as the appellant was never apprised of his right to get

his search conducted in the presence of a Gazetted Officer or a

Magistrate. Consequently, the notice under Section 50 of the NDPS

Act was a defective one and the appellant was not informed of his

right to be searched as per law and the appellant was liable to be

acquitted. Further, no public witness was joined by the police as it

was a chance recovery and the recovery was allegedly made at the bus

stand, so number of witnesses were present there from the general

public and despite availability, they were not joined by the

prosecution. It was further submitted that only the official witnesses

had supported the case of the prosecution. Still further, PW7 ASI

Sewa Ram admitted that the seal of LS and VK were not visible on

the sample parcels and the said admission proves that there was

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tampering with the sample parcels and the appellant was liable to be

acquitted by the Court. Still further, there was non-compliance of

Section 57 of the NDPS Act and the case is based on the testimonies

of the official witnesses and since the mandatory provisions of the Act

have not been complied with, the appellant was liable to be acquitted

by this Court.

Refuting the contentions raised by the learned counsel for

the appellant, the learned State counsel submitted that from the

perusal of the record, it is apparent that police had complied with all

mandatory provisions of the NDPS Act and the impugned judgment is

liable to be upheld. Learned State counsel further submitted that

evidence of the prosecution witnesses could not be disbelieved only

on the ground that they were the official witnesses and they had no

enmity or any other reason to falsely involve the present appellant.

Thus, it was prayed that impugned judgment may be ordered to be

upheld.

Learned counsel for the appellant submitted that in the

instant case, the mandatory provisions of Section 50 of the NDPS Act

have not been complied with by the prosecution and the appellant was

liable to be acquitted only on this ground. While referring to notice

Ex.PC, learned counsel submitted that the police was under a legal

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obligation to inform the accused of his right to be searched in the

presence of a Gazetted Officer or the Magistrate.

Learned counsel appearing for the State has opposed the

said submission and submitted that the provisions of Section 50 of the

NDPS Act would not be applicable to the facts of the instant case.

I have heard submissions made by the learned counsel for

the parties.

From a perusal of the testimonies of PW6 ASI Vijay

Singh and PW7 ASI Sewa Ram, it is apparent that recovery of the

opium had taken place from a plastic bag, which was held by the

accused in his right hand. Even, no recovery was effected from the

personal search of the accused and in case the recovery is made from

the plastic bag, held by the accused, the provisions of Section 50 of

the NDPS Act are not attracted.

It has been held by the Hon'ble Supreme Court in the

matter of State of Punjab VS. Baljinder Singh and another 2020(1)

R.C.R. (Criminal) 58 as follows:-

15. At this stage we may also consider following

observations from the decision of this Court in Ajmer

Singh v. State of Haryana [2010(2) RCR (Criminal) 132

: (2010) 3 SCC 746]-

"15. The learned counsel for the appellant contended that

the provision of Section 50 of the Act would also apply,

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while searching the bag, briefcase, etc. carried by the

person and its non-compliance would be fatal to the

proceedings initiated under the Act. We find no merit in

the contention of the learned counsel. It requires to be

noticed that the question of compliance or non-

compliance with Section 50 of the NDPS Act is relevant

only where search of a person is involved and the said

section is not applicable nor attracted where no search of

a person is involved. Search and recovery from a bag,

briefcase, container, etc. does not come within the ambit

of Section 50 of the NDPS Act, because firstly, Section 50

expressly speaks of search of person only. Secondly, the

section speaks of taking of the person to be searched by

the gazetted officer or a Magistrate for the purpose of

search. Thirdly, this issue in our considered opinion is no

more res integra in view of the observations made by this

Court in Madan Lal v. State of H.P. [2003(4) RCR

(Criminal) 100 : (2003) 7 SCC 465]. The Court has

observed: (SCC p. 471, para 16)

"16. A bare reading of Section 50 shows that it only

applies in case of personal search of a person. It does not

extend to search of a vehicle or a container or a bag or

premises (see Kalema Tumba v. State of Maharashtra

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[1999(4) RCR 575 : (1999) 8 SCC 257], State of Punjab

v. Baldev Singh [(1999) 6 SCC 172] and Gurbax Singh

v. State of Haryana [2001(1) RCR (Criminal) 702 :

(2001) 3 SCC 28] . The language of Section 50 is

implicitly clear that the search has to be in relation to a

person as contrasted to search of premises, vehicles or

articles. This position was settled beyond doubt by the

Constitution Bench in Baldev Singh case. Above being the

position, the contention regarding non-compliance with

Section 50 of the Act is also without any substance.

" 16. As regards applicability of the requirements under

Section 50 of the Act are concerned, it is well settled that

the mandate of Section 50 of the Act is confined to

"personal search" and not to search of a vehicle or a

container or premises.

17. The conclusion (3) as recorded by the Constitution

Bench in Para 57 of its judgment in Baldev Singh clearly

states that the conviction may not be based "only" on the

basis of possession of an illicit article recovered from

personal search in violation of the requirements under

Section 50 of the Act but if there be other evidence on

record, such material can certainly be looked into.

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In the instant case, the personal search of the accused

did not result in recovery of any contraband. Even if there

was any such recovery, the same could not be relied upon

for want of compliance of the requirements of Section 50

of the Act. But the search of the vehicle and recovery of

contraband pursuant thereto having stood proved, merely

because there was non-compliance of Section 50 of the

Act as far as "personal search" was concerned, no benefit

can be extended so as to invalidate the effect of recovery

from the search of the vehicle. Any such idea would be

directly in the teeth of conclusion (3) as aforesaid.

Consequently, when the recovery of the opium has taken

place from the plastic bag held by the accused in his right hand, the

provisions of Section 50 of the NDPS Act would not be applicable

and the said argument is liable to be rejected.

Learned counsel for the appellant further submitted that

the mandatory provisions of Section 57 of the NDPS Act were not

complied by the prosecution as PW10 Laxman Singh, Inspector/the

Station House Officer had not stated as to how the report under

Section 57 of the Act was sent to the higher police officers. However,

a perusal of the statement of PW10 Laxman Singh, Inspector/Station

House Officer, clearly shows that he had sent report under Section 57

of the NDPS Act to the higher authorities. Even PW1 Shri Virender

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Kumar Vij, the Deputy Commissioner of Police, supported the said

version and admitted the factum of receipt of report under Section 57

of the NDPS Act.

Still further, the provisions of Section 57 of the NDPS

Act are directory in nature and not mandatory and any violation of

these provisions even would not have vitiated the trial or conviction.

However, it is reiterated that there was sufficient compliance of

provisions of Section 57 of the NDPS Act, as is apparent from the

testimonies of PW1, Shri Virender Kumar Vij, the Deputy

Superintendent of Police and PW10 Laxman Singh Inspector/the

Station House Officer (retired).

Learned counsel for the appellant further submitted that

the witnesses of the prosecution had also admitted that the seal of 'LS'

was not mentioned in the particulars mentioned on remainder parcel

Ex.P1 and the accused was entitled to acquittal on this ground. The

said submission has been opposed by the learned counsel appearing

for the State. I have considered the submissions made by the learned

counsel for the parties and find no force in the said submission. In the

instant case, the certificate Ex.PJ/2 as well as photograph Ex.PG of

the case property and the samples were admissible in the evidence as

per Section 52 A of the NDPS Act. As per the certificate Ex.PJ/2 and

the photograph Ex.PG of the case property, it has been proved that the

sample parcels were duly sealed with the seals of 'VS', 'LS' and 'VK'

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and the parcels were found to be intact. Even as per the FSL report

Ex.PX, the sample parcels were found to be duly sealed and the

defence has failed to show any prejudice, which was caused to them

in this regard. Thus, the said submission is also liable to be rejected

by this Court.

Still further, learned counsel for the appellant submitted

that there was unexplained delay of 14 days in sending the sample to

FSL, Madhuban. The recovery was allegedly made from the appellant

on 11.10.2005 whereas the samples were dispatched to the FSL for

analysis on 25.10.2005 and this delay is fatal for the case of the

prosecution as chances of tampering could not be ruled out in the

meantime. However, from a perusal of the record, it is evident that

said statement does not hold any ground in view of the fact that the

FSL report Ex.PX clearly shows that the seals on the sample parcels

were intact and also tallied with the impression seals, which clearly

ruled out the tampering with the samples. The defence has also led no

evidence to the contrary and the said submission is liable to be

rejected.

Apart from that, the learned counsel for the appellant has

referred to minor inconsistencies appearing in the testimonies of

various prosecution witnesses. However, it is a matter of common

knowledge that such variations are bound to appear in the testimony

of truthful witnesses, who got a chance to appear before the Court

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after a gap of several months. The police has to conduct investigation

in different cases and it is not possible for the official witnesses to

make parrot like depositions before the Courts of law. Thus, such

minor inconsistencies appearing in the testimonies of various official

witnesses are liable to be rejected. The prosecution examined PW1,

Virender Kumar Vij, the Deputy Superintendent of Police, PW6 ASI

Vijay Singh and PW7 ASI Sewa Ram, who have supported each other

on material particulars. This Court has also perused the other evidence

and found that the evidence led by the prosecution inspires confidence

and finding no substance in the arguments raised by the learned

counsel for the appellant, the judgment of conviction is liable to be

upheld by this Court.

However, from a perusal of order of sentence, it is

apparent that the recovery of opium from the appellant was not a

commercial quantity and he was sentenced to undergo rigorous

imprisonment for a period of 04 years and to pay a fine of

Rs. 50,000/- under Section 18 of the NDPS Act. In the instant case,

the appellant/accused has undergone one year and three months of

actual sentence. Even, as per the custody certificate, no other case was

registered against the present appellant. Still further, the sentence

imposed on the present appellant was suspended on 09.01.2007 and as

per custody certificate, he has undergone an actual sentence of one

year, three months and nine days and in the last about 15 years, he has

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not misused the concession of bail. Still further, the appellant is also

stated to be suffered from paralysis, consequently, ends of justice will

be suitably met, if the sentence is reduced to the one already

undergone by him.

Resultantly, the conviction of the appellant, as recorded

by the learned trial Court is maintained. The order of sentence is

modified to that extent only. Sentence of fine of Rs. 50,000/- is

maintained. However, the substantive sentence is ordered to be

reduced from four years to the period already undergone by him.

All pending applications, if any, are disposed of,

accordingly.

The case property, if any, may be dealt with as per the

rules after expiry of period of limitation for filing the appeal.

Records of the Court below be sent back.

09.12.2022                                    (N.S.SHEKHAWAT)
amit rana                                           JUDGE


               Whether reasoned/speaking :             Yes/No
               Whether reportable         :            Yes/No




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