KASHMIR SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) On April 2, 1997, on suspicion accused was nabbed by ASI Ajaib Singh on the road leading from Shiv Majra to Bhatian. The accused was given an offer whether he wants to be searched before a gazetted officer or a Magistrate. In pursuance of his offer, Naib Tehsildar Shri Gian Parkash was summoned, before whom personal search of the accused was taken. It was found that he had in his possession 3 kgs and 500 grams of poppy husk. The contraband was seized from him. 200 grams of poppy husk was separated as a sample. Sample as well as the remainder were duly sealed by ASI Ajaib Singh. At that time Ajaib Singh was going from Shiv Majra to Bhatian in connection with pa trolling, general/excise checking along with a police party. He joined Surjit Singh during this investigation. Recovery Memo was prepared, which was duly signed by him as well as by witnesses and Naib Tehsildar Gian Parkash, Ruqa was sent for registration of the case. At the spot ASI Ajaib Singh also recorded the statements of the witnesses.

(2.) Petitioners learned counsel contends that provisions of sections 50, 52 and 55 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the NDPS Act) were not complied with. He also points out that ASI Ajaib Singh, who nabbed the accused, seized the contraband from his possession and lodged the FIR, has himself conducted the investigation, which is against the basic tenets of criminal jurisprudence. Thus, according to him, the petitioner in entitled to be enlarged on bail.

(3.) During arguments, respondents learned counsel submitted that though it was a case of chance recovery and not on the basis of any secret information received earlier by ASI Ajaib Singh, even then he followed the mandatory provisions of section 50 of the NDPS Act. Option was given to the accused to be searched either before a Magistrate or a gazetted officer. As he expressed his willingness to be searched before a Magistrate, Naib Tehsildar Gian Parkash was called and in his presence, personal search of the accused was taken and contraband was seized from his possession. Thus, according to him, this mandatory provision was duly complied with by the Investigating Officer. He also submits that immediately after effecting seizure, ASI Ajaib Singh sealed the contraband with his own seal and handed over the seal to another police official accompanying him. He also joined as an independent witness during investigation. No doubt, he recorded the statements of the witnesses on the spot after the FIR was registered at the police station, but according to him on this basis alone it cannot be said that the whole of the investigation stands vitiated or the accused-petitioner is entitled to any benefit. After completing the investigation at the spot, ASI Ajaib Singh brought the accused alongwith seized contraband to the police station, produced him before the Station House Officer, who put the accused in the police lock up and sealed the contraband with his own seal and kept it in safe custody in the Police Station Malkhana. Thus, according to him, the provisions of section 52 as well as well as section 55 of the NDPS Act were duly complied with.