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Deepak Rana Vs. State of Punjab - (High Court of Punjab and Haryana) (27 Mar 2018)

In absence of clear, unambiguous and individual communication, search was vitiated, even if, accused opted and reposed faith in Investigating Officer to conduct search

MANU/PH/0237/2018

Criminal

The prosecution story is that on 19th September, 2013, police party was on patrolling. On personal search of the accused, white intoxicating powder wrapped in plastic envelope was recovered. Two samples of 5/5 grams each were taken out and remaining quantity was weighed which came out to be 40 grams. The case property was sealed and sample parcels were prepared. The accused was produced before the SHO, who also affixed his seal on the case property. Trial Court convicted and sentenced the appellant. Appellant has preferred present appeal against the judgment of conviction and order of sentence passed by Judge Special Court whereby he was convicted for the offence punishable under Section 22 of the Narcotic Drugs And Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo rigorous imprisonment for a period of four and half months along with fine of Rs. 2000. In default of payment of fine, he was to further undergo rigorous imprisonment for a period of one month.

The prosecution has miserably failed to comply with Section 50 of the Act. No step was taken by the Investigating Officer to join the independent witness in the investigation. The accused was having right to be told in respect of his legal rights to be searched before the Gazetted Officer or Magistrate. The alleged confidence reposed by the accused in the Investigating Officer was not sufficient to presume that, valid offer was given by the Investigating Officer to the accused in terms of his rights to be searched before the Gazetted Officer or Magistrate. The documents prepared by the police in terms of Exs. PA, PB and PC would show that FIR under Section 22 of the NDPS Act, finds mentioned at the top of these documents, which are suggestive of the fact that these documents were prepared only after registration of the case. However, these documents ought to have been prepared before the registration of the case at the time of alleged arrest, recovery and seizure of the contraband.

In State of Rajasthan Vs. Parmanand and another, the Hon'ble Apex Court held that, in the absence of such clear, unambiguous and individual communication, search was vitiated even if, the accused opted and reposed faith in the Investigating Officer to conduct search. Hon'ble Apex Court after relying upon decision in Paramjit Singh and another Vs. State of Punjab, observed that on personal search of the accused, he must be apprised of his individual right to be searched before the Magistrate or Gazetted Officer. Compliance of Section 50 of the NDPS Act is mandatory from the stage when the Investigating Officer came to know that the accused was carrying some contraband.

The accused was required to be searched in the presence of the independent officer. The officer who had conducted the search of the accused was only a member of raiding party and such reposition of faith by the accused would be in contravention of the spirit of Section 50(1) of the NDPS Act. As per prosecution case, representative samples were not drawn in the presence of the Magistrate and said omission has gone against the spirit of Section 52-A of the NDPS Act. Principle of fair and impartial investigation should have been adhered to by the prosecution. The person effecting search and seizure, proceeded to investigate the offence at a later stage. The said officer was not competent to investigate the offence being Judge of his own cause.

The occurrence took place on 19th September, 2013. As per FSL report, the sample was received in the laboratory on 30th September, 2013. According to the instructions/notification No. 1/88 issued by the Narcotics Control Bureau, the samples were required to be sent to the FSL within 72 hours. The prosecution case is found to be doubtful in the context of complicity of the Appellant for the offence alleged against him. The Appellant has already completed the requisite sentence. The Appellant acquitted from the charges levelled against him. Appeal is accordingly allowed. Impugned judgment of conviction and order of sentence passed by Special Court Judge is set aside.

Relevant : State of Rajasthan Vs. Parmanand and another, MANU/SC/0158/2014: 2014 (2) RCR (Criminal) 40, Paramjit Singh and another Vs. State of Punjab, MANU/SC/0376/1997: 1997 (1) RCR (Criminal) 293

Tags : SEARCH   INVESTIGATION   VALIDITY  

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