Nirvail Singh and others vs State of Punjab

Dr. Sarojnei Saksena, J.

Petitioner''s counsel contends that the only small quantity of 100 grams of opium is alleged to have been seized from the possession of the petitioner on 27.8.1995 at 5.00 p.m. but on this very date at 10.00 a.m. a telegram was sent that the petitioner is picked up by the police and apprehends false implication.

His another contention is that the independent witness was joined but seal after use was not handed over to this independent witness but was given to another police official. The third contention is that while complying with provisions of section 50 of the N.D.P.S. Act, the Gazetted Officer was called but from the F.I.R., it is not evident that the search was made under his direction as is mandatory under subclause (3) of Section 50 of the Act. His last contention is that under Section 167(2) of the Code of Criminal Procedure, challan was to be filed by 25.11.1995. Challan was submitted on 21.11.1995 without appending the Chemical Examiner''s report, which was later on, filed on 5.12.1995. Hence, even on this point of default, the petitioner is entitled to be enlarged on bail.

Whether the petitioner is falsely implicated in this case is a question of fact, which can be determined only after recording the evidence. There is no rule that the seal after being used should be handed over to the independent witness, that is also a point which can be considered at the time of weighing the veracity of the prosecution evidence.

From the F.I.R. it is evident that in compliance of Section 50 of the Act, a Gazetted Officer was called and thereafter, in his presence, search was conducted. In the F.I.R. words used are in their supervision, the Investigating Officer conducted the search. If in the F.I.R. it is not mentioned that under the direction of the Gazetted Officer, search was made, prima facie it will not make the search invalid in view of this provision. No doubt, challan was submitted on 21.11.1995 without the Chemical Examiner''s report which was filed on 5.12.1995, but at that time the petitioner cannot claim that concession. The case is now fixed for 15.1.1996 for framing the charge.

Lastly, the petitioner has submitted an affidavit of Surjit Singh, who was joined by the Investigating Officer as independent witness at the time of search and seizure. In this affidavit, this deponent has stated that no search was taken in his presence and no seizure was made. This prima facie shows that the petitioner is trying to tamper with the prosecution evidence. On this count also, bail petition is liable to be dismissed which is hereby dismissed. The trial Court is directed to conclude the trial before the commencement of the summer vacation. The order be conveyed to the concerned Judge by the Registrar.