SIMARJIT KAUR @ SIMAR KAUR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE petitioner-accused seeks bail in case bearing FIR No. 117 of 2001 dated 25.9.2001 registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') with Police Station, Jhabhal, Tarn Taran, District Amritsar.

(2.) ON 25.9.2001, Sub-Inspector Hardev Singh S.H.O. Police Station, Jhabhal alongwith other police officials was present near Baba Budha Sahib Bir College in connection with checking. He received secret information that one lady of fair complexion having height 5'2" used to come on every Tuesday for selling smack to the students of Baba Budha Sahib Bir College and since it was Tuesday on that day she would come for the said purpose. Finding this information credible, he associated Inderjit Singh, resident of Bhkhiwind Road, Jhabhal. In the meantime, they noticed petitioner-accused coming from the gate of Baba Budha Sahib College. On suspicion she was stopped. The Investigating Officer informed the accused that he had suspicion that she was carrying intoxicants in her possession. Thereafter he secured the presence of Amrit Singh, Deputy Superintendent of Police, Sub Division, Tarn Taran and also S.P.O. Beant Kaur and S.P.O. Maninder Jit Kaur. In the present of D.S.P. Amrit Singh search of the accused was conducted by S.P.O. Beant Kaur as he had agreed to be searched by her which led to the recovery of 400 grams of smack from the black purse which she had put on her right shoulder. 10 Grams of smack was separated as sample and put in a plastic tin. The seizure memo was prepared and recovery proceedings was completed at the spot. Necessary information was sent to the Police Station for registration of the case.

(3.) OPPOSING the submissions made, it has been strenuously urged by the State counsel that as the recovery was made from the purse carried by the accused, the provisions of Section 42 of the Act as such would not be attracted. Rather, the recovery in question would be covered by the ambit of Section 43 of the Act and no such information was required to be sent in writing by the Investigating Officer before effecting the recovery because of the marked difference in the provisions contained in Sections 42 and 43 of the Act because Section 42 relates to the information being received is linked up with the keeping and selling of a narcotic or psychotropic substance in any building, conveyance or enclosed place between sun set and sun rise and the present recovery was effected at 3.00 p.m. Additionally, it was submitted by him that compliance of Section 50 of the Act has been done in this case and non-handing over the seal to the independent witness after use, who was present at the time of recovery, would not be a ground to claim bail because this contention relates to the appreciation of evidence which has to be adduced on record during the trial of the case. Regarding the non-drawing of two samples of smack at the spot of recovery, it was contended that per se is no ground to vitiate the trial because the petitioner has yet to show as to what prejudice has resulted to her on that account and for that reason it would not give her any right to overcome the mandatory provisions of Section 37 of the Act. Reliance was also placed by him on the case in Superintendent, Narcotics Control Bureau, Chennai v. R. Paulsamy, 2001 S.C.C. (Crl.) 648 and State of Madhya Pradesh v. Kajad, 2001(4) RCR(Crl.) 219.