Punjab-Haryana High Court
Surjit Ram @ Teetu vs State Of Punjab on 14 December, 2023
Neutral Citation No:=2023:PHHC:163102
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CRA-S No.2268 of 2022 (O&M) 2023:PHHC:163102
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S No.2268 of 2022 (O&M)
Date of Reserve: 08.12.2023
Date of Decision: 14.12.2023
Surjit Ram @ Teetu
......Appellant
Vs
State of Punjab
....Respondent
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Ms. Dhamanpreet Kaur, Advocate (Legal Aid counsel)
for the appellant.
Mr. Gurlal Singh Dhillon, Asstt. A.G., Punjab.
****
HARKESH MANUJA, J.
[1]. By way of present appeal, challenge has been laid to the judgment of
conviction and order of sentence dated 15.03.2022 passed by the Judge (Special
Court) Shaheed Bhagat Singh Nagar in FIR no 17 dated 27.02.2019 under Sections
22 and 29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to
be referred to as "NDPS Act") whereby the appellant was convicted under Section
22 of NDPS Act and sentenced to undergo rigorous imprisonment for the period
already undergone i.e 1 month and 10 days alongwith payment of fine of Rs 1500/-
and in default of payment of fine to further undergo rigorous imprisonment for a
period of 10 days. The fine stands paid by the appellant.
[2]. Briefly stated, as alleged, on 27.02.2019 appellant and other co-
accused were standing with polythene bags in their hands near Saroya Complex,
Ratnana Road, Rahon, Distt. SBS Nagar. On basis of suspicion, Investigating
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Officer posted at Rahon asked them to hand over the said polythene bags and
thereafter informed the Deputy Superintendent of Police, SBS Nagar. Upon
reaching the spot DSP disclosed his name and rank to both accused and also his
intention to conduct search on the basis of suspicion. Further, DSP apprised them
of their legal right to get their search conducted in presence of Magistrate but both
accused reposed confidence in him and accordingly consent memos were prepared
and were signed by both accused.
[3]. Upon search of said polythene bags 25 strips each containing 10
capsules of Tredol-50 and 07 strips each containing 10 tablets of Alprazolam
tablets XL-PAM 0.5 mg were recovered from the bag of accused Surjit Ram @
Teetu which happened to be of non-commercial quantity and 28 strips each strip
containing 10 tablets of Clovidol-100 SR were recovered from the bag of accused
Harjinder Singh also amounting to non-commercial quantity. After completing
necessary formalities accused were arrested. On the next day, accused were
produced before Judicial Magistrate Ist Class, SBS Nagar and Form No.29 was
prepared in the Court. The case property and sample parcels were also produced
before the Court. Thereafter upon receipt of report of chemical examiner, challan
was presented in the Court and charge-sheet was served upon accused, who
pleaded not guilty and claimed trial.
[4]. After appreciating the material on record, the Trial Court held that
since recovery was not carried out from the person of the accused, rather from the
polythene bags, there was no requirement of search to be conducted in presence of
Gazetted Officer or Magistrate but still the same was carried out in presence of
DSP who happened to be a gazetted officer and thus, there was no violation of
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Section 50 of NDPS Act. Resultantly, convicted and sentenced the appellant in the
aforesaid manner vide decision dated 15.03.2022
[5]. I have heard learned counsel for the parties and gone through the
paper-book with their able assistance.
[6]. In the present case, the Court below failed to appreciate the fact that
personal search was indeed conducted as evident from the personal search memos
of both the accused as Ex.PW-3/M(accused-appellant Surjit Ram @ Teeta) and
Ex.PW-3/N(other co-accused Harjinder Singh), however, even though an option of
search before any other Gazetted Officer or Magistrate was given to the accused by
DSP but that was merely with regard to search of polythene bags and no option
was given to accused when they were subsequently searched in person. Therefore,
necessary mandate as laid down in Section 50 of NDPS Act was not fulfilled,
which can even be derived from the decision of Hon'ble Supreme Court judgment
in case of Sanjeev and Anr. Vs State of Himachal Pradesh reported as 2022(2)
RCR(Cri) 341 wherein the Hon'ble Apex Court held that failure to give an
option/choice to accused to be searched personally, in presence of Magistrate is
against the mandatory requirement of Section 50 of NDPS Act. Relevant paragraph
is reproduced as: -
"9. We have checked the original record to satisfy ourselves.
Exhibits PW8/B, PW8/C, PW8/D and PW8/E, which are arrest
memos, do not reflect that any option or choice was given to the
accused before their personal search was undertaken. It is true
that personal search did not result in recovery of any
contraband material but non-compliance of requirement of
affording an option, was one of the reasons weighed with the
Trial Court in disbelieving the case of the prosecution."
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[7]. Further, Court below also failed to consider the fact that Form No.29
was not filled-up on the spot rather it was filled-up in the Court and this error
committed by Investigating Agency creates doubt in the prosecution story and goes
against the cannons of law as explained by this Court in Gurjant Singh vs State of
Punjab reported as 2007(4) RCR(Cri) 226 where the accused was acquitted by
giving him benefit of doubt as Form No.29 was not filled-up on the spot as it laid a
dent in the prosecution's case. The relevant paragraph from the judgment passed in
case of Gurjant Singh's case (supra) is reproduced hereunder: -
"Another admitted position is that Form No. 29 was neither
prepared at the spot nor deposited with the Incharge of
malkhana. The matter does not rest here. There is no evidence
on record with regard to preparation of the seal impression chit
as all the three prosecution witnesses are silent on this aspect.
Form No. 29(Ex PK) no doubt reflects that one sample
impression chit bearing inscription 'BS and DS' is pasted on it.
there are signatures of Daljit Singh SHO but it does not say a
word that he has put his seal impression on any sample chit
after affixing his seal on case property. It is also not exhibited
before the trial Court. At the same time, there is also no
reference in the report with regard to the fact that all the 25
samples sent to the Chemical Examiner were tallied with the
seal impression chit. Therefore, it creates doubt in mind of the
Court as to when this sample chit was prepared. No doubt
while filling up Form No. 29 which isprepared by SHO Daljit Si
it is mentioned that 20 samples contained the sample seal
impression 'BS and DS' but in my considered view, this would
not be sufficient to say that the link evidence is proved. This is
the reason that in Bhola Singhs case (supra), this Court has
laid lot of stress on this aspect and made it practically
incumbent upon the investigating agency to fill up the aforesaid
Form No. 29 at the spot. In my view the case of the appellant is
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squarely covered by the ratio of Bhola Singhs case (supra) as
well as by the ratio of another judgment rendered in Baldev
Singh's case (supra)."
[8]. In view of the discussion made hereinabove, the prosecuting agency,
having failed to establish the guilt of the appellant, beyond reasonable doubt, the
present appeal is allowed and the appellant is acquitted of the charges leveled
against him. Resultantly, the impugned judgment of conviction and order of
sentence dated 15.03.2022 passed by the Judge (Special Court) Shaheed Bhagat
Singh Nagar is hereby set aside.
[9]. All pending application(s), if any, shall stand disposed of.
(HARKESH MANUJA)
December 14, 2023 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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