STATE OF PUNJAB Vs. DAVINDER SINGH @ SAHAB

JUDGEMENT

(1.) The present application has been preferred under Sec. 378(3) Cr.P.C. seeking grant of leave to appeal against the judgment of acquittal dtd. 17/2/2020 passed by the learned Judge Special Court, Jalandhar in case FIR No.69 dtd. 23/3/2015, registered under Sec. 22 (c) of the NDPS Act, at Police Station City Nakodar.

(2.) The brief facts of the case are that on 23/3/2015, ASI Inder Singh along with other police officials was present at T' point Hussainpur situated at Nakodar to Kapurthala Road on patrolling duty. During checking, one person was seen coming from the side of Kapurthala on his car make Indica bearing registration No.PB08-AS-5647. ASI Inder Singh signalled the driver of the said car to stop but he had tried to flee away from the spot. However, he was apprehended by ASI Inder Singh with the help of other members of police party. On enquiry, said person disclosed his name as Davinder Singh @ Sahab (respondent). ASI Inder Singh told the respondent that he was suspecting some intoxicating substance in his possession and he had apprised him about his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. The respondent did not accept the offer and in turn opted to be searched by the Investigating Officer. Therefore, consent memo was prepared. Before carrying out the personal search of the respondent/accused, the police party tried to join an independent witness but no one had shown his consent. Thereafter, the Investigating Officer, in the presence of the members of the police party, carried out the personal search of the accused/respondent. From the right pocket of the pant worn by him, one plastic envelope containing intoxicating powder was recovered from which two samples of 05 grams each were separated which were put in separate plastic containers and were sealed. The bulk Case property weighing 235 grams was separately sealed by the IO with his seal bearing impression 'IS'. The Form M-29 was separately prepared. The seal after use was handed over to HC Balwinder Singh. The parcels containing the case property and samples were taken into police possession vide recovery memos. The car being driven by the accused/respondent was also taken into police possession vide separate recovery memo. Since, the accused/respondent could not furnish any reasonable and proper explanation for retaining in his possession the recovered intoxicating powder, therefore, he was found to have committed offence under Sec. 22 of the NDPS Act. Accordingly, rukka was sent to the Police Station for registration of FIR. Thereafter, site plan of the place of recovery was prepared. Statements of witnesses were recorded. On returning to the police station, accused along with the case property samples and Form M-29 was produced before the SHO. Thereafter, the case property was deposited with the MHC. One of the sample parcels was sent to the office of Chemical Examiner, Kharar for testing. On receipt of report of chemical examiner and on completion of investigation, the challan was presented against the accused/respondent.

(3.) Learned State counsel submits that the trial Court had erred in acquitting the respondent despite cogent, reliable and duly corroborated evidence being brought on record by the prosecution establishing the commission of offence under Sec. 22 of the NDPS Act. He further submits that insofar as the question of compliance of the mandatory provisions of the NDPS Act is concerned, ASI Inder Singh, Investigating Officer had duly apprised the accused/respondent of his legal right under Sec. 50 of the NDPS Act to be searched in the presence of a Gazetted Officer or a Magistrate but the accused/respondent voluntarily opted to be searched by the Investigating Officer and a consent memo to that effect was duly prepared and signed. Moreover, Form M-29 was duly prepared and all necessary documents including the recovery memos, seizure memos and site plan were prepared on the spot. He further submits that although efforts were made to join an independent witness at the time of recovery but no one was willing to participate despite sincere efforts. It is an admitted case where recovery of 245 grams of intoxicating powder containing Alprazolam was effected and the report of the Chemical Examiner had duly confirmed the presence of a psychotropic substance. Thus, the quantity recovered clearly falls within the ambit of Sec. 22 of the NDPS Act. He, therefore, prays for allowing the appeal and setting aside the impugned judgment of acquittal passed by the learned Trial Court.