FRANK Vs. STATE OF PUNJAB

JUDGEMENT

(1.) On oral request made by counsel for the applicants/appellants, the main appeals are taken up today for hearing as the Lower Court record is received.

(2.) Prayer in these appeals is for setting-aside the judgment of conviction as well as the order of sentence dated 07.02.2019, vide which the appellants namely Frank and Chinnoya were convicted for an offence punishable under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the NDPS Act') and the accused/appellant namely Chinnoya was also convicted for offence punishable under Section 14 of the Foreign Act, 1946 for staying in India beyond the expiry of permissible period provided in his Visa and they were sentenced to undergo rigorous imprisonment for a period of 05 years and to pay the fine and in default of payment of fine to further undergo rigorous imprisonment for a period of 05 months.

(3.) Brief facts of the case are that on 30.05.2018, ASI Sukhwinder Singh along with ASI Kamaljit Singh and other police officers were present in the area of S.A.S. Nagar, Mohali near Gurudwara Amb Sahib in order to search the drug peddlers and at about 10:00 PM, a secret information was received that two Nigerians namely Frank and Chinnoya have brought heroin from Delhi and are looking for the customers for its sale in Phase XI, S.A.S. Nagar Mohali. Thereafter, ASI Sukhwinder Singh along with other police officers immediately reached in Phase XI, S.A.S. Nagar, Mohali and placed barricade there and started checking. Thereafter, at about 01:30 PM, two Nigerians came from the Chowk of Phase XI, S.A.S. Nagar Mohali on foot and they were apprehended at the spot and they disclosed their names as Frank and Chinnoya. ASI Sukhwinder Singh disclosed his identity to them and informed them in English language that he has a suspicion that they are in possession of some Heroin and he wants to search the same and the accused/appellants were also apprised of their legal right to get their search conducted in the presence of some Gazetted Officer or the Magistrate. Thereafter, both the accused showed their desire to get themselves searched in the presence of a Gazetted Officer and in this regard, dissent memo of both the accused was prepared. Thereafter, the Investigating Officer called Hardeep Singh, PPS, the then DSP of Special Task Force, S.A.S. Nagar and requested him to come to the spot. The DSP of Special Task Force, S.A.S. Nagar reached at the spot and disclosed his identity to the accused and he also apprised the accused that they have a legal right to get their search conducted from any other Gazetted Officer or Magistrate but both of them reposed confidence in him. Thereafter, the DSP Hardeep Singh prepared their consent memo in English language and the search of the accused Frank was conducted by ASI Sukhwinder Singh on the direction of DSP Hardeep Singh and from the right pocket of the lower worn by him, Heroin wrapped in polythene bag was recovered and on weighing the same, it was found to be of 200 grams. He prepared the parcel of the same and affixed the seal bearing impression 'SS' on the same. Thereafter, the search of the accused Chinnoya was conducted and from the right pocket of Capri worn by him, Heroin wrapped in a polythene bag was recovered and on weighing the same, it was also found to be of 200 grams. ASI Sukhwinder Singh also prepared the parcel of the same and affixed the seal bearing impression 'SS' on the same. The said parcels were also sealed by DSP Hardeep Singh with his seal bearing impressions 'HS'. Sample seal was also prepared. The seal after use was handed over to ASI Kamaljeet Singh. The Heroin was taken into police possession vide separate recovery memo. The accused could not show any valid documents/passports regarding their stay in India. Thereafter, a ruqa was sent by ASI Sukhwinder Singh through HC Gurnaib Singh for registration of the FIR on the basis of which, a formal FIR was registered. Thereafter on the next day i.e. 31.05.2018, the accused were produced before the trial Court/Illaqa Magistrate along with the articles. The contraband was later on deposited with MHC and on receipt of the report of the Chemical Examiner and on completion of the investigation, challan against the accused was presented before the trial Court.