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TITLE: Yogesh v State of Haryana

Decided On-:02.6.2023

CRM-M No. 27293 of 2023

CORAM: Hon’ble Justice Mr. N.S Shekhawat  

INTRODUCTION- The accused/appellant was found guilty and sentenced to two and a half years of rigorous imprisonment for violating Section 17(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the “NDPS Act”). The present appeal is directed against the judgement of conviction dated April 27, 2005, and order of sentence dated April 29, 2005, passed by the learned Special Judge, Rohtak. The sentences were set to run simultaneously.

FACTS OF THE CASE- According to the evidence presented by the prosecution, on April 30, 2001, Inspector Satbir Singh of the CIA in Rohtak received a top-secret tip that the accused, Yogesh @ Pappe, was selling charas at the “Kashaiyon Wala Chowk” (Butcher’s circle) Indira market in Rohtak. If a raid were to be launched right away, he could have been captured there. In this regard, a note was made in the Daily Dairy Register, and Constable Pardeep Kumar forwarded a copy of the note to the senior police officers. A raiding party was organised, and the group led by Inspector Satbir Singh arrived at the designated location.He identified himself as Yogesh @ Pappe, son of Ramesh, when the police team questioned him. The appellant received a notice under Section 50 of the NDPS Act and was informed of his right to request a search of himself in front of a gazetted officer or a Magistrate. The defendant chose to have his search done before a gazetted after responding right away. When the accused was searched at Inspector Satbir Singh’s request, 400 grammes of charas that had been kept by him in the right side pocket of his trousers were discovered, wrapped in polythene paper. Two distinct parcels were made from the five grammes of charas that were separated as a sample. In addition, 100 grammes of opium that was wrapped in polythene paper was found in his shirt’s front pocket, and 5 grammes of that quantity was taken out as a sample and placed in an empty matchbox. The defendants, witnesses, and case materials were presented to Kailash Chand, SHO, Police Station City Rohtak, who confirmed the information with them and affixed his seal, which read “KC,” to each parcel, and told Inspector Satbir Singh to give the case property to MHC while keeping the accused locked up. The challan was presented against the accused before the appropriate court following the necessary investigation.

COURT ANALYSIS AND DECISION

The appellant’s knowledgeable attorney vehemently argued that because Section 42 of the NDPS Act’s mandatory provisions were not followed in this case and there was a violation of those provisions, the appellant should be found not guilty by this Court. Further, the appellant’s knowledgeable attorney argued that PW-4 DSP Kartar Singh was summoned to the scene and made an offer to the accused via notice Ex.PC that the search could be conducted in either his or a Magistrate’s presence.In addition, there was no proof that the seal sample impressions had been created on-site or that the entire process had taken place in the police station. On the other hand, experienced legal representation representing the State of Haryana disagreed with the appellant’s submissions. The learned state attorney argued that the recovery in this case had taken place from a public location, specifically “Kashaiyon Wala Chowk” (butchers’ circle), Indira market, Rohtak. The NDPS Act’s Section 42 would not apply because the recovery was carried out from a public location; instead, Section 43’s provisions would take effect. The argument put forth by the appellant that there was a violation of the mandatory provision of Section 50 of the NDPS Act under the facts and circumstances of the current case is rejected by the court as having no merit. In actuality, Section 50 of the NDPS Act did not mandate that a second notice be given. In this instance, the appellant was already aware of his legal right—as stated in notice —to request that his search be conducted in front of a gazetted officer or a magistrate, as required by law. Therefore, it is impossible to claim that there was a violation of a law’s mandatory provisions, and this Court is likely to reject the aforementioned argument. It was clear that the appellant had paid the fine on the spot that day. Expert legal counsel for the appellant argued that a lenient view could be adopted while still giving him the sentence. The said argument put forth on behalf of the appellant is deemed to have sufficient weight by this Court. This Court is aware that the current appellant had been found to be in possession of contraband. Taking into consideration the totality of the circumstances, the substantive sentence of the appellant is reduced to the period already undergone by him

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Written by-  Steffi Desousa

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