High Court of Punjab and HaryanaCRM-A/276/2020dismissed

State Of Punjab v. Ajay Kumar And Another

2024-10-15Mr. Justice Sudhir Singh,Mr. Justice Jasjit Singh Bedi20 pages

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"Stated that I am doing private job in Mohali. On 17.2.2016, I went to duty as routine. My brother Sandeep Verma whose working in Swaraj Majda also on duty on that day. My wife Leisha Verma went to Karnal to his parents house. On 17.2.2016 nobody in our house. The house was locked from outside gate and also to the rooms. At about 4.00 my brother came back home. He called me that the lock of the room was broken. The grill of the kitchen also broken. The lock of the almira brief case were also broken. My laptop make HP, cash and one mobile phone kept in the almira were stolen by the unknown person. On 20.2.2016, case was registered against

#5# unknown person. My laptop was recovered in this case same was identified by me vide identification memo Ex.PW1/A. I brought the laptop from Bangalore. Copy of the bill is Mark A. My statement was recorded by the police".

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"Stated that I have brought the summoned record regarding motor4cycle bearing no. PB12AA41686. The same is on the name of Manoj Kumar S/o Bhupinder Kumar, R/o house no. 2589, Phool Chakkar Mohalla, Rupnagar. The screen report of the vehicle is Ex. PW3/A".

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"Stated that on 14.7.2016, I was posted at PS City Rupnagar. On that day, I along with HC Sohan Singh, HC Prem Nath, ASI Makhan Singh were on patrolling and Nakabandi. The police party has placed Nakka near cremation ground Gaushala Road Rupnagar. At about 8:45 PM, a motor4cycle was seen coming from Railon side, on which two persons were sitting. The police party made a signal to the motor4cycle borne persons to stop. They tried to flee away from the spot. The persons who was sitting at the back jumped from the motor4cycle with the intention of running from the spot. He was having a small bag of black colour on his shoulder. He was apprehended by ASI Makhan Singh. The other person ie. who was driving the motor4cycle was also apprehended. I asked the name of the person who was sitting at the back seat.

#6# motor4cyclist namely Manoj Kumar was tying a cloth against his waist of Kesari Colour having some article tied in the same. I disclosed about my name, rank, posting and identity. I further disclosed that I suspect some contraband in the bag being carried by Ajay Kumar and in the cloth which is tied to the waist of Ajay Kumar. I further disclosed about legal right to the accused that they had got legal right to get their search conducted from a Gazetted Officer or a Magistrate and they can be called on the spot. Both the persons reposed confidence with me on which consent memo Ex. PW4/A was got recorded by me duly signed by both accused and attested by HC Sohan Singh as attesting witness.

On the search of the cloth (Parna) which accused Manoj Kumar had tied, a green colour polythene in which there was a visible polythene which was having white colour intoxicant powder. The same was weighed and was found to be 560 Gms. 10/10 gms were drawn as sample and was put in two small polythene and the polythene were put into plastic cases. The parcel of the same was prepared and the remaining 540 gms of intoxicant powder was again put into the visible polythene and the parcel of the same was prepared. All the three parcels were duly sealed by me with my seal TS. Sample seal was prepared separately. The seal was handed over to HC Sohan Singh after use by me. Form no. 29 M was flled up partially.

On the search of the bag which accused Ajay Kumar was holding, a laptop of black colour of HP Company having serial no. CND43540MP Model no.1512078TU was recovered. The accused was not able to prove the ownership of laptop. As the accused was not able to produce any license or permit to keep the intoxicant powder and further was not able to prove the ownership of laptop. Ruqa Ex. PW4/B was sent for registration of FIR being Ex.PW4/C, noting of the same is Ex.PW4/D. Recovery memo regarding 560 gms of intoxicant powder is Ex. PW4/E. The motor4cycle bearing no. PB12AA4 1686 was taken into police possession vide memo Ex. PW4/F. The recovery memo regarding laptop from accused Ajay Kumar is Ex. PW4/G. Rough site plan was prepared by me

#7# being Ex. PW4/H. The accused were arrested vide memo Ex. PW4/J. The personal search memo of accused Ajay Kumar is Ex. PW4/K and personal search memo of accused Manoj Kumar is Ex.PW4/L. Statement of witnesses were recorded under section 161 Cr.PC by me. All the memos were attested by HC Sohan Singh as attesting witness.

After completing the investigation on the spot, the accused along with the case property were produced before SHO namely SI Pawan Kumar. He verified the facts from the accused and checked the case property. After finding the same, to be correct, SHO affixed his seal PK on the case property i.e. three parcel. The accused were put in police lock4up and the case property deposited with MHC. Form no.29 M was filled up by SHO. Sample seal was also seeing by him and both i.e. form no. 29 M, sample seal along with case property were deposited with MHC.

On 15.7.2016, the accused along with case property were produced before Illaqa Magistrate (Duty Magistrate). Application Ex.PW4/M was moved under section 52 A NDPS Act. Inventory report being Ex.PW4/N. The orders of Ld. Magistrate is Ex. PW4/O. Police remand of the accused was taken. The accused made confessional statement and the same being Ex. PW4/P. The owner of the laptop namely Manoj Kumar S/o Late Isher Dass identified the laptop and the memo of the same is Ex.PW1/A. Sample seals being Ex. PW4/Q, form no. 29 M is Ex.PW4/R and the chemical examiner report is Ex.PW4/S. All the investigation was done by me being true and correct. I have seen the case property today and the same being Ex.MO1 i.e. sample of 10 gm of intoxicant powder, Ex. MO2 i.e. laptop of HP Company, Ex. MO3 i.e. Motorcycle bearing no. PB12AA41686 and Ex. MO4 i.e. Kesari Colour cloth (parna). I identify the accused Manoj Kumar @ Lucky from whom 560 gms of intoxicant powder was recovered and accused Ajay kumar is not present today.

I identify accused Ajay Kumar as shown to me through Video conference".

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#8# "Stated that on 14.7.2016, I was posted at PS City Rupnagar. On that day, I along with ASI Tarlochan Singh , HC Prem Nath, ASI Makhan Singh were on patrolling and nakkabandi. The police party has placed Nakka near cremation ground Gauoshala Road Rupnagar. At about 8:45 PM, a motor4cycle was seen coming from Railon side, on which two persons were sitting. The police party made a signal to the motor4cycle borne persons to stop. They tried to fled away from the spot. The persons who was sitting at the back jumped from the motor4 cycle with the intention of running from the spot. He was having a small bag of black colour on his shoulder. He was apprehended by ASI Makhan Singh. The other person i.e. who was driving the motor4cycle was also apprehended. IO asked the name of the person who was sitting at the back seat.

He disclosed his name as Ajay Kumar @ Aju, S/o Kuldeep Singh R/o 17A/1, Green Avenue Rupnagar and the motor4cyclist disclosed his name as Manoj Kumar @ Lucky S/o Bhupinder Kumar R/o house No. 2525, Mohalla Phool Chakker Rupnagar. The number of the motorcycle was PB12AA41686 mark Hero Splender. The motor4cyclist namely Manoj Kumar was tying a cloth against his waist of Kesari Colour having some article tied in the same.

IO disclosed about his name, rank, posting and identity. IO further disclosed that his suspect some contraband in the bag being carried by Ajay Kumar and in the cloth which is tied to the waist of Ajay Kumar. IO further disclosed about legal right to the accused that they had got legal right to get their search conducted from a Gazetted Officer or a Magistrate and they can be called on the spot. Both the persons reposed confdence with IO on which consent memo Ex. PW4/A was got recorded by IO duly signed by both accused and attested by me as attesting witness.

#9# The parcel of the same was prepared and the remaining 540 gms of intoxicant powder was again put into the visible polythene and the parcel of the same was prepared. All the three parcels were duly sealed by IO with his seal TS. Sample seal was prepared separately. The seal was handed over to me after use by me. Form no. 29 M was filled up partially. On the search of the bag which accused Ajay Kumar was holding, a laptop of black colour of HP Company having serial no. CND43540MP Model no. 1512078TU was recovered. The accused was not able to prove the ownership of laptop. As the accused was not able to produce any license or permit to keep the intoxicant powder and further was not able to prove the ownership of laptop. Ruqa Ex. PW4/B was sent for registration of FIR being Ex. PW4/C, noting of the same is Ex. PW4/D.

Recovery memo regarding 560 gms of intoxicant powder is Ex. PW4/E. The motor4cycle bearing no. PB12AA4 1686 was taken into police possession vide memo Ex. PW4/F. The recovery memo regarding laptop from accused Ajay Kumar is Ex. PW4/G. Rough site plan was prepared by IO being Ex. PW4/H. The accused were arrested vide memo Ex. PW4/J. The personal search memo of accused Ajay Kumar is Ex. PW4/K and personal search memo of accused Manoj Kumar is Ex.PW4/L. Statement of witnesses were recorded under section 161Cr.PC by IO. All the memos were attested by me as attesting witness.

After completing the investigation on the spot, the accused along with the case property were produced before SHO namely SI Pawan Kumar. He verified the facts from the accused and checked the case property. After finding the same, to be correct, Sho affixed his seal PK on the case property i.e. three parcel. The accused were put in police lock4up and the case property deposited with MHC. Form no.29 M was filled up by SHO. Sample seal was also seeing by him and both ie. form no. 29 M, sample seal along with case property were deposited with MHC. My statement was recorded by the IO. I identifed the accused".

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#10# "Stated that on 14.07.2016, I was posted at PS City Rupnagar. On the said date, ASI Tarlochan Singh, produced before me accused Manoj Kumar, Ajay Kumar along4with two samples each containing 10 gm of intoxicating powder and one parcel containing remaining contraband weighing 540 gm sealed with the seal bearing impression TS. After verifying the antecedents of the accused and the case property, I affixed my seal bearing impression PK on the two samples and the bulk case property and sample seal already Ex.PW4/Q and form no. 29M already Ex.PW4/R were completed and affixed my seal on the said exhibits at point4A. I identify my signatures on the above said exhibits at point4A. I affixed my seal bearing impression PK on the representative samples and the remaining bulk contraband. I identify my signature on the Ex.

MO1 at point4A which I have seen in the court today. Thereafter, I directed the ASI Tarlochan Singh to deposit the case property with MHC and the accused were put up in the lock4up. IO recorded my statement. I identify accused Manoj Kumar present in the court and accused Ajay Kumar present through VC".

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"Stated that I am working as Assistant Dept. Manager at Infiniti Retail Limited Trading as Croma. Today, I have brought summoned record i.e.

invoice no.

SLF02A045010096793 of laptop of make HP. The laptop was sold to Manoj Kumar. The item code of the same is 173154. The computer generated invoice is Ex.PW7/A. The performa bill invoice is Ex.PW7/C. The certificate under Section 654B is Ex.PW7/B".

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"7. Thereafter, the accused was asked by the police personnel of raiding party as to whether he is in possession of contraband "Charas". The accused admitted that he is in possession of "Charas". On apprehending the accused, he was informed by the police personnel that he has a legal right to be searched in the presence of a Gazetted Officer or a Magistrate to which the accused replied that he has a faith on the raiding police party and consented to be searched by them.

8. The raiding police party accordingly obtained his consent in writing to be searched by the raiding police party. The raiding police party then searched the accused which resulted in seizure of "Charas" weighing around 2.5 K.G. in quantity from his body.

*** *** ***

19. The short question which arises for consideration in the appeal is whether the search/recovery made by the police officials from the appellant (accused) of the alleged contraband (charas) can be held to be in accordance with the procedure prescribed under Section of the NDPS Act .

20. In other words, the question that arises for consideration in this appeal is whether the prosecution was able to prove that the procedure prescribed under Section 50 of the NDPS Act was followed by the Police Officials in letter and spirit while making the search and recovery of the contraband "Charas" from the appellant (accused).

21. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remains no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh 1999(3) RCR (Criminal) 533:

#14# (1999) 6 SCC 172and Vijaysinh Chandubha Jadeja (supra).

22. Indeed, the latter Constitution Bench decision rendered in the case of Vijaysinh Chandubha Jadeja (supra) has settled the aforementioned questions after taking into considerations all previous case law on the subject.

23. Their Lordships have held in Vijaysinh Chandubha Jadeja (supra) that the requirements of Section 50 of the NDPS Act are mandatory and, therefore, the provisions of Section 50 must be strictly complied with. It is held that it is imperative on the part of the Police Officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. It is held that it is equally mandatory on the part of the authorized officer to make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this requires a strict compliance.

It is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act but so far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. (See also Ashok Kumar Sharma v. State of Rajasthan, 2013(2) RCR (Criminal) 1: 2013 (2) SCC 67 and Narcotics Control Bureau v. Sukh Dev Raj Sodhi, 2011(3) RCR (Criminal) 370 : 2011 (6) SCC 392).

24. Keeping in view the aforementioned principle of law laid down by this Court, we have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of the NDPS Act while making search and recovery of the contraband "Charas" from the appellant and, if so, whether it was done in the presence of a Magistrate or a Gazetted Officer so as to make the search and recovery of contraband "Charas" from the appellant in conformity with the requirements of Section 50.

25. In our considered view, the evidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence

#15# of either a Magistrate or a Gazetted Officer.

26. It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under Section 50 in relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.

27. We do not agree to this finding of the two Courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.

28.

First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Section of the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section of the NDPS Act.

It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.

#16#

29. Though, the prosecution examined as many as five police officials (PW41 to PW45) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.

30. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non4compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal."

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F8.While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court.G +, 0 7 $

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