Mohinder Singh vs The State Of Punjab

2. Briefly stated case of the prosecution is that on 30.04.1998, Digitally signed by MADHU BALA Joginder Singh, SI, Police Station Sadar Ludhiana (PW-2) along Date: 2018.08.14 17:01:50 IST Reason: with other police officials was checking the vehicles on the bridge of 1 Gill Canal towards the side of village Gill. Meanwhile, at about 7.00-7.30 pm, appellant Mohinder Singh came on his scooter No.PB-10B-2413. A signal was given to stop the scooter and the appellant/accused stopped his scooter. It was suspected that some contraband substance was being carried in the bag. Appellant/accused was informed of his right of search before a Gazetted Officer or a Magistrate. Joginder Singh (PW-2) called Gurjit Singh, DSP (PW-4) and the bag carried by the appellant/accused was searched in his presence and the substance bag was found to be “opium”. On weighment, it was found to be 7 kilos and 40 gms. Two samples from the recovered “opium”, each weighing 20 gms were taken and sealed separately having monogram ‘JS’ and ‘GS’ and taken into possession vide recovery memo Ext.-PE. Case property along with two samples was deposited with Baldev Singh MHC (PW-5). Next day i.e. on 01.05.1998, the case property as well as the sample parcels were produced before the Area Magistrate who is said to have initialled the case property and the sample parcels. The sample parcels were sent to Forensic Science Laboratory (FSL) and subjected to chemical analysis and the contents were found to be “opium” in FSL report vide Ext.-P1. After completion of the investigation, charge sheet was filed against appellant under Section 18 of the NDPS Act. 2

3. To prove the guilt of the accused, the prosecution has examined Constable Hardev Singh (PW-1), SI Joginder Singh (PW-2), ASI Harbhajan Singh (PW-3), DSP Gurjit Singh (PW-4) and Baldev Singh, MHC (PW-5). The appellant was examined under Section 313 Cr.P.C. to explain the incriminating evidence circumstance appearing in the prosecution evidence and he denied all of them.

5. Placing reliance upon State of Punjab v. Baldev Singh (1998) 2 SCC 724, the High Court held that recovery of contraband from a bag/attache which the accused was carrying in his hands, would not amount to search of person and as such Section 50 of the NDPS Act will not apply. Based on the evidence of SI Joginder 3 Singh (PW-2) and Harbhajan Singh (PW-3), the High Court held that the case property parcels of the samples and the samples having the seals of ‘JS’ and ‘GS’ were duly produced before the Magistrate and on those findings, the High Court reversed the order of acquittal and convicted the appellant under Section 18 of the NDPS Act and sentenced him to undergo ten years imprisonment. Being aggrieved, the appellant/accused has preferred this appeal.

16. Considering the case in hand, the findings of the trial court cannot be said to be ‘distorted conclusions’ warranting interference. Based on the oral evidence of Joginder Singh (PW-2) and Harbhajan Singh (PW-3), the High Court ought not to have interfered with the order of acquittal and the conviction of the appellant under Section 18 of the NDPS Act cannot be sustained.

17. In the result, the conviction of the appellant under Section 18 of the NDPS Act and the sentence of imprisonment imposed on him 10 is set aside and this appeal is allowed and the appellant is acquitted of the charge.

August 14, 2018 11