STATE OF PUNJAB Vs. LUCKY

JUDGEMENT

(1.) Present application has been filed under Section 378 (3) of the Code of Criminal Procedure, 1973 (in short "the Code") for grant of Leave to Criminal Appeal against the judgment of acquittal dated 07.02.2019 passed by learned Judge, Special Court, Jalandhar, whereby respondent-Lucky has been acquitted of the charges under Sections 22, 61, 85 Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'NDPS Act').

(2.) The facts as put forth by the prosecution are to the effect that on 21.11.2014 at about 08.50 A.M., the respondent/accused (Lucky) was found in his conscious possession of 271 grams of intoxicant powder (Diphenoxylate Hydrocholoride), without any license or permit. On 21.11.2014, police party headed by S.I. Prithi Raj along with other police officials was on patrolling duty from Philaur to Ganna Pind in detection of criminals. The police party reached near the turn of village Bhenni and in the meantime, one person was seen coming on the foot from the side of village Bhenni, but on seeing the police party, he became nervous and started to re-track. On suspicion that man was apprehended and he was interrogated and on interrogation, he disclosed his name as Lucky son of Balvir Chand, resident of village Ganna Pind. Sub Inspector Prithi Raj gave his introduction to the accused and told him that it was suspected that he was carrying some contraband in his possession and his search was required to be conducted. He apprised the accused of his legal right to be searched in the presence of Gazetted Officer or Magistrate, but the accused reposed confidence upon him. The consent statement of the accused was reduced into writing. Investigating Officer also tried to join independent witnesses, but all the independent persons showed their reluctance to be witness in the police proceedings. The Investigating Officer conducted the search of the accused in the presence of other police officials and on search, one polythene envelope was recovered from the right pocket of the shivt/kapri worn by the accused and thereby the Investigating Officer found the intoxicant powder wrapped in the polythene envelope. The Investigating Officer separated two samples of 5 grams each from the bulk of the intoxicant powder and the same were converted into sample parcels. On weighment of remaining contraband, it came to be 261 grams of intoxicant powder. The Investigating Officer sealed the parcels by putting his seal under the impression 'PR' and all the parcels were taken into police possession. Seal after use was handed over to Head Constable Ashwani Kumar. Form M-29 was filled on the spot. Ruqa was transmitted to the police station and on the basis of which, formal F.I.R. was registered. The accused was arrested and rough site plan of the place of recovery was prepared. The statement of prosecution witnesses was recorded. Accused was produced before Inspector/SHO Harinder Singh, who verified the facts and sealed the parcels with seal bearing impression 'HS'.

(3.) We have heard the learned counsel for the State (applicant- appellant) and have also gone through the paper-book very carefully with his assistance. It is admitted case of the prosecution that initially the recovery of contraband was effected from the personal search of the accused. Undoubtedly, the polythene envelope containing intoxicant powder was recovered from the right pocket of the shirt/kapri worn by the accused. We are of the view that Section 50 of the NDPS Act applies only in case a person is intended to be searched. The Section comes into play when person has to be searched. As such, it was incumbent upon the authorized Officer of the police to inform to the respondent/accused with regard to his right to be searched of his person in the presence of a Gazetted Officer or Magistrate. It is obvious that the Arresting Officer has failed to apprise the accused/respondent of his legal right to be searched before a Gazetted Officer or Magistrate. There is clear cut non-compliance of the mandatory provision of Section 50 of the NDPS Act and it renders the search wholly illegal. The effecting of other recovery of the contraband on the basis of disclosure statement of the respondent/accused is totally insignificance in the wake of the fact that initial recovery of contraband is illegal and is not in accordance with the provision of the NDPS Act, 1985. As such, the Lower Court has rightly disbelieved the case of the prosecution and has rightly given the benefit of doubt to the respondent/accused.