Punjab-Haryana High Court
Santokh Singh vs State Of Pb on 22 March, 2024
Author: Kirti Singh
Bench: Kirti Singh
Neutral Citation No:=2024:PHHC:041960
CRA-S-2274-SB-2006 (O&M) 1
2024:PHHC:041960
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Sr. No.711
CRA-S-2274-SB-2006 (O&M)
Reserved on : 01.03.2024
Pronounced on: 22.03.2024
Santokh Singh ..... Appellant
VERSUS
State of Punjab ..... Respondent
CORAM: HON'BLE MS. JUSTICE KIRTI SINGH
Present: Mr. Akshat Mittal, Advocate (Amicus Curiae)
for the appellant.
Mr. Aftab Singh Khara, Sr. DAG, Punjab.
*****
KIRTI SINGH, J.
The present appeal has been preferred against the judgment
of conviction and order of sentence dated 11.10.2006 passed by the
learned Judge Special Court, Amritsar in case FIR No.117 dated
25.05.2002 registered at Police Station Sultanwind, Amritsar, whereby the
appellant has been convicted under Section 18 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as NDPS Act)
and has been sentenced to undergo a rigorous imprisonment for a period
of 02 years and to pay a fine of Rs.1000/- with default stipulation.
2. The brief prosecution story as mentioned in the FIR is that
on 25.05.2002 ASI Arun Kumar along with fellow police officials were
present at the bridge of the canal in the area of Chattiwind, Tarn Taran
Road, Amritsar, where he received secret information to the effect that the
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accused is involved in the sale of opium and is present with a huge
quantity of opium near the factory of black salt near Abadi Kot Mit Singh
and if a raid is conducted then opium can be recovered from him. Relying
upon the said information, a raid was conducted and on seeing the police
party the accused tried to slip away however he was apprehended and his
identity was verified. Meanwhile Surinder Singh an independent witness
was joined in the police party. ASI Arun Kumar told the accused that it
was suspected that he was carrying some narcotic substance and his
search was to be conducted. He was also informed about getting himself
searched in the presence of a Gazetted Officer or Magistrate. Thereafter
under the supervision of DSP Jagdish Singh Khera, the search of the
accused was conducted by ASI Arun Kumar and opium was recovered
from the polythene envelope which the accused was holding in his right
hand out of which 10 grams was separated as sample and the remaining
weighing 990 grams was taken as a separate parcel which were prepared
and sealed with the seals bearing impression AS and JSK. The
incriminating articles were taken into possession vide separate recovery
memo.
3. After completion of the investigation, challan against the
accused was presented in the court and copies of documents under section
207 Cr.P.C. were furnished to the accused. From the perusal of the report
under section 173 Cr.P.C. a prima-facie case punishable under section 18
of the NDPS Act, was made out against the accused who was
charge-sheeted to which he pleaded not guilty and claimed trial.
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4. In order to prove its case, the prosecution has examined 4
witnesses, besides producing documentary evidence. The statement of the
accused u/s. 313 Cr.P.C. has also been recorded and he led no evidence in
his defence.
5. The learned counsel appearing for the appellant has raised the
following arguments:-
(i) that there is non compliance of Section 42 of the
NDPS Act.
(ii) that there was no compliance of mandatory
provisions of Section 50 of the NDPS Act.
6. The submissions made by learned counsel for the appellant
was opposed by the learned State counsel by submitting that the
mandatory provisions of the NDPS Act had been complied with. He
further submitted that the investigating officer followed the complete
procedure as prescribed by the statute and there was no violation as
alleged. Therefore, there was no infirmity in the judgment passed by the
learned trial Court and the same may be upheld.
Analysis
7. With regard to the first contention of non compliance of
Section 42 of the NDPS Act, it was submitted by the counsel for the
appellant that on receipt of information against the accused, ASI Arun
Kumar (PW2) conducted the raid and recovery was effected from the
accused. No ruqa was recorded on the receipt of information and no
intimation was sent to the superior officer which is the mandate of Section
42 of the NDPS Act. However, this contention is misfounded as the
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recovery had not been effected during the course of search of any
building, conveyance or enclosed place. The accused was spotted while
he was holding a polythene bag in his right hand containing opium in it.
The provisions of Section 42 of the NDPS Act will come into play in the
event of any building, conveyance or any close place is to be searched.
Hence, under these circumstances, it cannot be said that the mandatory
provisions of Section 42 were required to be followed.
8. With regard to the second point of determination that there is
non compliance of Section 50 of the NDPS Act, it is held that in the
present case, the recovery was effected from the bag which the accused
was holding in his right hand. The recovery was not effected during his
personal search and as such, the provisions of Section 50 of the NDPS
Act will not come into play. The Hon'ble Supreme Court in Ranjan
Kumar Chadha Vs. State of Himachal Pradesh, 2023 SCC online SC
1262 held that the provision of Section 50 will come into play only in
case of personal search of the accused and not of some bag or article
which he may be carrying. The relevant extract of the order is reproduced
as below:-
"Thus, the Constitutional Bench in express terms
laid down that although, the non compliance of Section 50
may not vitiate the trial yet would render the recovery of the
contraband doubtful and may vitiate the conviction of the
accused. The emphasis laid by the Court is on illicit articles
seized from the "person of an accused" during the search
conducted in violation of safeguards provided in Section 50
of the NDPS Act. In other words, according to Baldev Singh
(supra), the provisions of Section 50 will come into play only
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in the case of personal search of the accused and not of some
baggage like a bag, article or container etc. which he may be
carrying."
9. After carefully examining the record as well as the findings
recorded by the learned trial court it can be seen that no perversity has
been committed by the trial Court while reaching to its conclusion as the
entire evidence on record has been carefully perused. Thus, the impugned
judgment of conviction is affirmed and upheld.
10. Now reverting to the order of sentence, this Court is
conscious of the fact that at the time of passing of the sentence, the
present appellant was aged about 24 years. He was sentenced to undergo
rigorous imprisonment for a period of 2 years and to pay a fine of
Rs. 1000/- with a default stipulation. As per the custody certificate
produced by the learned State counsel, the appellant/accused has
undergone actual sentence of 05 months and 06 days. Even, as per the
prosecution, about 01 kg of opium was recovered from the possession of
the accused which is a non-commercial quantity. The sentence imposed
on the present appellant was suspended by this Court on 17.11.2006 and
for about 17 years, the appellant has been suffering a protracted trial. The
appellant has not indulged in any criminal activity. Even though, this
court is of the considered view that the offences under the NDPS Act are
very serious in nature and are against the interest of society at large and
no discretion is to be exercised in favour of such accused who are
indulged in such offences under the Act. It is a menace to the society, no
leniency should be shown to the accused persons who are found guilty
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under the NDPS Act. But while upholding the same, this Court cannot be
oblivious of the other facts and circumstances as projected in the present
case that the appellant is a first time offender and is stated to be the sole
bread earner of the family. Thus, no purpose will be served by sending the
appellant behind the bars after such a long period. Consequently, the
sentence imposed upon the present appellant is reduced to the period
already undergone by him. However, the fine imposed upon the appellant
i.e. Rs.1000/- is enhanced to Rs.5,000/-.
11. With the above modifications, the impugned judgment of
conviction is upheld, however the order of sentence is modified to the
extent that the sentence imposed on the present appellant is reduced to the
period already undergone by him. However, the enhanced amount of fine
i.e. Rs.5,000/- shall be deposited by him before learned trial Court within
a period of three months from today and in default of payment of fine he
shall undergo simple imprisonment for 03 months. The amount of fine
imposed by the Trial Court, if deposited previously, shall be adjusted. His
bail bonds stand discharged.
12. Pending miscellaneous application(s), if any, also stands
disposed of.
13. Records of the Court below be sent back.
(KIRTI SINGH)
JUDGE
22.03.2024
Ramandeep Singh
Whether speaking / reasoned Yes / No
Whether Reportable Yes/ No
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