HC ACQUITS DRUG ACCUSED AS COPS FAIL TO FOLLOW LAW

CHANDIGARH:The Punjab and Haryana high court has acquitted a Hoshiarpur resident of drug peddling charges as it found that police failed to search him before a gazetted officer, as required, at the time of arrest.

The bench of justice Amol Rattan Singh observed that “...attributing one hundred percent truthfulness to the statements made by police officials, though would be an ideal situation and actually should be so... practically it is not possible to attribute such complete honesty to them always, because like all human beings, not all police officials can be honestly accepted to be truthful all the time, even though the intention behind any particular arrest may not be malafide, which of course at times could also be so,” and acquitted Kulwinder Kumar, who was arrested in 2013 for allegedly carrying 170 gm of a synthetic drug. He was awarded 10 years’ imprisonment by a Hoshiarpur court in 2015, which he had challenged in the HC.

His arrest was made by a team led by an assistant subinspector (ASI), and he was not searched before a gazetted officer, as police claimed that he consented for the search by them. There was also no independent witness to the arrest. On the consent memo for search (by police) signed by the accused, which police had shown to the court, the court said that a person who has already been apprehended by police officials does not have much of a choice to actually refuse to sign such memo.

Also, at time of arrest he was shown to be carrying amphetamine, but later chemical test said it was diphenoxylate. Both of these are synthetic drugs. The samples were not drawn by the magistrate as mandated in the Narcotic Drugs and Psychotropic Substances Act. The court wondered how the name of the powder was given in the FIR without any basic testing.

The court held that the accused was not actually arrested in the manner that he was shown to be arrested by police, which makes the recovery of drugs doubtful. The court observed that to make its exercise authentic, transparent and creditworthy, the police should make an endeavour to produce the suspect before the nearest magistrate. “It would not only add legitimacy to the search proceedings; it may verily strengthen the prosecution as well,” justice Singh recorded, adding that “unfortunately, misuse of the provisions of the Act is not an uncommon phenomenon”.