- (1.) Ingenuity of counsel sometimes results in formulation propositions, which appear at the first flush to be legally sound and relatable to recognized cannons of criminal jurisprudence. When examined in greater depth, their rationale is nothing but illusory; and the argument is without substance. One such argument has been advanced in the present case by the learned counsel appearing for the appellant who contends that even where the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') have not been complied with the recovery can otherwise be proved without solely relying upon the personal search of the accused'. According to the learned counsel, the courts are required to take into consideration evidence of recovery of illicit material independently of the factum of personal search of the accused as stated by other witnesses as such evidence would be admissible and can form the basis for conviction of an accused in accordance with law.
(2.) Before we notice the judgments which have been referred to on behalf of the State, it will be necessary for us to refer to the facts giving rise to the present appeal. On 18th January, 1998 at about 8.15 a.m., a secret informer met Assistant Sub Inspector (ASI) - Dasrath Singh (who was examined as PW8) and informed him that a person by the name of Ram Avtar @ Rama resident of House No. 71/144, Prem Nagar, Choti Subzi Mandi, Janakpuri would be going to his house on a two wheeler scooter No. DL 4SL 2996 and if the said person was searched and raid was conducted, smack could be recovered from him. This information was passed on by ASI-Dasrath Singh, to the Station House Officer (SHO) M.C. Sharma (who was examined as PW4), on telephone, who in turn directed R.P. Mehta, Assistant Commissioner of Police (Narcotics Bureau) ACP(NB) to conduct the raid immediately. The secret information was recorded in the DD at Sl. No.3. In furtherance to this at around 8.30 A.M., ASI Dasrath Singh along with Sub Inspector (SI) Sahab Singh, Head Constable Narsingh, Constable Manoj Kumar, Lady Constable Nirmla and the informer left for the spot in a Government vehicle. The vehicle was parked in a hideout at some distance. At around 9.30 a.m. Ram Avtar was apprehended based on pointing out by the informer while he was coming on a two wheeler scooter from the side of the main road, Tilak Nagar near his house. It is the case of the prosecution that a police officer in the raiding party had requested some persons, who were passing by, to join the raid but they declined to do so on some ground or the other. The police officer then served a notice Ex. PW6/A in writing, under Section 50 of the Act upon the appellant but he declined to be searched either in presence of a Gazetted Officer or a Magistrate. On search, three polythene packets were recovered from left side pocket of his shirt. On opening the packets, it was found to contain powder of light brown colour, suspected to be smack. This recovered powder was mixed together. The total weight of the recovered powder was 16 grams, out of which 5 grams were separated as sample. Both the sample and the remaining powder were converted into two parcels and sealed with the seal of DS which were the initials of PW8. CFSL Form was filled and seal of DS also affixed thereon. Parcels were seized vide memo Ex. PW-2/8. PW8 sent the parcels, CFSL Form and copy of rukka, Ex.PW- 5/8 through Constable Manoj Kumar to Station House Officer (PW4) for recording an FIR under Section 21 of the Act. The samples, rukka etc. are now produced in carbon copy as Ex.PW-5/A. Sample parcels were sent to CFSL, Chandigarh and as per their report, the sample gave positive test for diacetylmorphine (heroin). Resultantly, Ram Avtar was taken into custody, and charge-sheet for committing an offence under Section 21 of the Act was filed against him.
(3.) As many as eight witnesses were examined by the prosecution to bring home the guilt against the accused. In his statement under Section 313 of the Cr.P.C., the plea taken by the accused was that on the day of occurrence his house was searched without a valid warrant and as nothing was recovered therefrom, he demanded a "no recovery certificate". He claims that the police misbehaved and that he was taken to the Police Station, Narcotic Branch on the pretext of issuing such "no recovery certificate". He claims to have been falsely implicated in this case. The accused had taken a specific objection, with regard to non-compliance with the provisions of Section 50 of the Act, and had laid down this defense before the Trial Court. The Trial Court was of the opinion that the prosecution has been able to prove the case beyond any reasonable doubt and therefore, convicted the accused and sentenced him to undergo rigorous imprisonment of ten years and pay a fine of Rs.1,00,000/-; in default thereof, further undergo one year of rigorous imprisonment.;