Dismissed

Jaswant Singh v. Stateof Pb

Punjab & Haryana HC17 Sept 2012CRA-S/982/2001

Case brief

AI extract

What is this about?

In this criminal appeal under the NDPS Act, the High Court of Punjab and Haryana dismissed the appeal against conviction and sentence. The court held that Section 50 of the NDPS Act is not mandatory when recovery is made from a bag or premises, not from the person. Huge quantity recovery was held to indicate conscious possession.

What did the court decide?

Criminal appeal failed and was dismissed. Bail officers to take measures for arrest of the appellant.

Jaswant Singh Vs Stateof Pb — Narcotics (NDPS) | Punjab & Haryana HC (2012)

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CRA No.S-982 of 2001

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CRA No.S-982-SB of 2001 Date of Decision: September 17, 2012

Jaswant Singh

... Appellant

Versus

State of Punjab

... Respondent

CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH

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1. Whether Reporters of the local papers may be allowed to see the judgment?

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1. To be referred to the Reporters or not ?.

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1. Whether the judgment should be reported in the Digest ?

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Present: Mr. H.N. Mehtani, Advocate, for the appellant.

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Mr. K.S. Aulakh, AAG, Punjab.

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Paramjeet Singh, J.

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This criminal appeal is directed against the judgment of conviction and order of sentence dated 18.05.2001 passed by the learned Judge, Special Court, Ludiana, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac for the offence punishable under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”). In default, to further undergo rigorous imprisonment for one year.

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CRA No.S-982 of 2001

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Brief facts of the case are that on 07.02.1988, a police party headed by ASI Darshan Singh, Investigating Officer, along with HC (Now ASI) Raminderjit Singh, was going towards Village Dehlon from the side of Killa Raipur in connection with patrolling. When the police party was about 20 karams short of canal minor bridge in the area of Village Dehlon, the accused-appellant was seen coming from the opposite direction. The accused had wrapped a blanket on his person. On seeing the police party, he turned towards his left hand towards the fields. On suspicion, he was apprehended by the Investigating Officer. Since the Investigating Officer suspected some contraband with him, he asked the accused whether he wanted to be searched in the presence of a Gazetted Officer or Magistrate. The accused reposed trust in the Investigating Officer, as such, his statement (Ex.PC) was recorded. Thereafter, the Investigating Officer conducted the search of the accused. The blanket wrapped over his person was removed and it was found that a jhola (bag) was hanging on the right shoulder of the accused. The jhola was searched and it was found to contain opium wrapped in a glazed paper, which led to the recovery of 2 kgs opium. Two samples of 10 gram each were separated and these were put in separate match boxes. Remaining opium was put in a separate plastic container after wrapping it in a glazed paper. Parcels of the samples and the bulk recovery were prepared and sealed at the spot by the Investigating Officer with his seal bearing impression `DS'. Jhola was taken into possession vide memo Ex.PD. The seal after use was handed over to HC Raminderjit Singh. From the personal search of the accused,

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CRA No.S-982 of 2001 3

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currency notes of Rs.30/- were recovered. These were taken into possession vide memo Ex.PE. Thereafter, the Investigating Officer sent ruqa (Ex.PB) to the police station through C. Jagtar Singh, on the basis of which formal FIR (Ex.PB/1) was recorded. The Investigating Officer also prepared rough site plan. On reaching the police station, on the same day, the Investigating Officer produced the accused and the case property before SI/SHO Sakattar Singh, who verified the facts. One of the two sample parcels was got tested from the Forensic Science Lab., Punjab, Chandigarh and vide its report (Ex.PJ), the sample was opined to be of opium. After completion of investigation, challan was presented against the accused in the Court. Finding a prima facie case against the accused, he was charge-sheeted to which he pleaded not guilty and claimed trial.

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The prosecution, in order to prove its case, examined six witnesses i.e. PW1 MHC Joginder Singh, PW2 SI Sakattar Singh, PW3 ASI Raminderjit Singh, PW4 ASI Hakam Singh, PW5 C. Pritam Singh and PW6 ASI Darshan Singh and closed its evidence.

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Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. All incriminating circumstances were put to him. He denied the same and pleaded false implication. However, in his defence, he has examined DW1 Dharamvir Singh.

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The learned Trial Court, after trial, convicted and sentenced the accused appellant as aforesaid. Hence, this criminal appeal.

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I have heard learned counsel for the appellant, as well, as the learned State counsel.

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CRA No.S-982 of 2001 4

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Learned counsel for the appellant vehemently contended that there is no compliance of the provisions of Section 50 of the NDPS Act. The appellant was not taken to the Gazetted Officer or a Magistrate, rather, he was searched by the ASI Investigating Officer. The compliance of Section 50 of the NDPS Act is mandatory before effecting recovery. Learned counsel for the appellant further submitted that the prosecution has failed to prove the conscious possession of the appellant and submitted that the link evidence is missing. There are number of contradictions and discrepancies in the statements of Police witnesses.

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Learned State counsel has opposed the contentions raised by the learned counsel for the appellant and submitted that recovery has been effected from the bag and not from the person of the accused. Huge quantity has been recovered from the bag which has turned out to be opium weighing 2 kgs. which was contained in his bag. Such a huge quantity cannot be planted on the accused. The appellant was apprehended at the spot. As such, the possession of the appellant is conscious and he was fully aware of this fact.

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I have considered the rival contentions of the learned counsel for the parties and perused the evidence on record.

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Perusal of the record shows that when the appellant was apprehended then an option was given to him whether he wanted to be searched by a Gazetted Officer or by a Magistrate and the consent memo was prepared and the appellant reposed trust in the Investigating Officer. As such, the search was carried out.

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CRA No.S-982 of 2001

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The Apex Court in the judgment of State of Punjab versus Baldev Singh, AIR 1999 SC 2378 has clearly held as under:-

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“ 12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirement of Section 50 of the Act are not attracted.”

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When the recovery is effected from the person only then compliance of the provisions of Section 50 of the NDPS Act is mandatory. If the recovery is effected from the premises etc. then there is no requirement of complying with the provisions of Section 50 of the NDPS Act. The said view has been further affirmed by the Apex Court in the case of Ajmer Singh versus State of Haryana, 2010(2) RCR (Criminal) 132 wherein it has been held that Section 50 of the NDPS Act applies only in case the personal search of the person is carried out and not otherwise. Articles like bag, brief case, container, etc. cannot even remotely be treated as part of the body of a human being. The same view has been affirmed in a recent Constitutional Bench judgment of the Hon'ble Apex Court in the case of Vijaysinh Chandubha Jadeja versus State of Gujarat, 2010(4) RCR (Criminal) 911.

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CRA No.S-982 of 2001

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In view of the above, the contention of the learned counsel for the appellant in regard to non-compliance of Section 50 of the NDPS Act fails.

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The recovery of the huge quantity of bag from his shoulder at the spot is indicative of the conscious possession of the appellant as per Section 35 of the NDPS Act. The presumption of existence of such mental state will be presumed against the appellant especially in view of the explanation given in Section 35 of the NDPS Act. A person in possession of huge quantity of contrabands must be deemed to be in the knowledge of the fact of such articles, unless it is rebutted by cogent evidence. Recovery itself indicates the motive and intention of retaining such contraband and is the indicative of the fact of conscious possession. However, the learned counsel for the appellant has failed to rebut the same specifically when he has been apprehended at the spot.

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Learned counsel for the appellant failed to point out any other material discrepancies which may go to the root of the case.

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In view of this, present criminal appeal fails and is dismissed. Since appellant is on bail, the authorities may take appropriate measures for arrest of the appellant to serve the remaining part of the sentence.

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September 18, 2012 vkd

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[Paramjeet Singh] Judge

Jaswant Singh v. Stateof Pb

Case brief

What is this about?

What did the court decide?

Jaswant Singh v. Stateof Pb

Case brief

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What did the court decide?

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