Rule to associate independent witness in drug seizure cases not absolute: HC

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The Punjab and Haryana high court has said that in ‘chance recovery’ cases, prosecution cases do not get vitiated merely because of the fact that an independent witness was not present at the time of the seizure.

“There is no hard and fast rule that an independent witness is required to be associated in every case. It is a rule of prudence only and not an absolute rule that the recovery must be witnessed by an independent person,” the high court bench of justice Gurvinder Singh Gill said, dismissing a bunch of bail and suspension of sentence petitions based on argument that police didn’t rope in independent witnesses and a gazetted officer during the seizure.

The court further added that in ‘chance recovery’ cases, the contentions of not effecting recovery by a gazetted officer or a magistrate will not hold ground. Such seizures cannot be said to be a case of recovery pursuant to personal search of the accused, it added.

In one case, the FIR was registered on seizure from two persons coming on a motorcycle, who upon noticing the police party tried to take a U-turn. In the process, they slipped and a plastic bag kept between them fell off, from which the police recovered drugs. The police in this case had failed to effect seizure in the presence of a gazetted officer and independent witness could also not be associated.

In the second case, a person booked in 2016 in a drugs case was awarded 10 years imprisonment and had sought suspension of the sentence. In this case, too, no independent witness joined the probe. “The testimonies of official witnesses, who effected the recovery and conducted investigation in discharge of their official duties, cannot be doubted merely on account of non-joining of independent witness,” the bench recorded.

In the third case, registered in SBS Nagar in June 2021, the police had booked a person for possessing drugs. As per the police, he, upon noticing a police party, threw away a packet he was carrying. The packet, when examined, contained drugs. In this case, too, no independent witness was associated with the probe and a gazetted officer also did not conduct the search. The prosecution had claimed that it was a case of “chance recovery” from an envelope thrown by the accused and there is no question of compliance of provisions of Section 50 of the Act or for association of any independent witness. The person was booked in a drugs seizure case earlier too. The court in this too denied bail, observing that he cannot be given relief merely because of the fact that seizure was not made in the presence of a gazetted officer and an independent witness did not join the police.


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