State
of Haryana Vs. Vikram Singh [2002] Insc 27 (22 January 2002)
N. Santosh
Hegde & Doraiswamy Raju Santosh Hegde,J.
Being
aggrieved by the judgment of the High Court of Punjab & Haryana at Chandigarh passed in Criminal Appeal
No.442-SB/1988, the State of Haryana is in
appeal before us. The respondent herein was charged with an offence punishable
under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985
(for short 'the Act'), and was tried for the same by the Additional Sessions
Judge, Ambala, who found him guilty of the said offence and sentenced him to
undergo R.I. for 10 years and to pay a fine of RS.1 lakh. It was further
directed that in default of payment of fine, he shall undergo further RI for 5
years.
It was
the prosecution case that on 24.1.1987 the respondent, when apprehended and
searched, was found carrying 15 kg. of opium. The prosecution case further
stated that as required under Section 50 of the Act, the respondent was duly
informed of his right of being searched before a Gazetted Officer or a
Magistrate but he declined that offer, and based on the Panchnama of search and
the evidence of the three witnesses, he was found guilty by the learned
Additional Sessions Judge and sentenced, as stated above.
In
appeal, the High Court came to the conclusion that the prosecution has not
established that as a matter of fact, the respondent was informed of his right
under Section 50. It also noticed that the FIR filed in the case did not
contain any averment to the effect that an offer to be searched before a Gazetted
Officer or a Magistrate was made, hence, held that the prosecution case, that
such an offer was made was an afterthought. It also came to the conclusion that
the oral evidence of the prosecution witnesses cannot be relied upon and the Panch
witness who was examined, was a stock witness who had earlier, in similar
cases, given evidence on behalf of the prosecution and in this case had turned
hostile, therefore, it was not safe to rely upon such evidence, accordingly,
allowed the appeal and set aside the conviction and sentence imposed on the
respondent.
As
stated above, the State is in appeal before us. We have heard learned counsel
for the parties and perused the records. It is an admitted fact that the offer
of search as stipulated under Section 50 of the Act is not supported by any
documentary evidence. Both in regard to this factum of offer of search and to
establish its case, the prosecution relies upon the oral evidence.
In our
opinion, the High Court has rightly come to the conclusion that PW-1 who was
examined in this regard has turned hostile and has not supported the case of
the prosecution. The High Court has also noticed the fact that PW-1 was a stock
witness for the Police. That being the case, the High Court felt it was not
safe to rely on the evidence of PW-1, the Inspector, and PW-3, the Assistant
Sub-Inspector. In such circumstances, we are not persuaded to take a contrary
view. More so in the background of the fact, the search and seizure in this
case was not proved to be in accordance with law.
In the
result, we find no infirmity in the impugned judgment of the High Court.
Accordingly, this appeal fails and the same is dismissed.
..................................J.
(N.Santosh
Hegde) ...................................J.
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