NDPS - Sec 50 applicable only when person is bodily searched, not bags: SC
By TIOL News Service
NEW DELHI, JUNE 05, 2014: THESE appeals arise out of the judgment of High Court dismissing the appeal of the appellants which was preferred against the judgment of the Additional Sessions Judge, Panipal (Special Judge) convicting them under Section 18 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short ' NDPS Act') and sentencing them to undergo rigorous imprisonment for 10 years and fine of Rupees One lakh each.
As per the case of the prosecution on 22.8.1999, Rajinder Singh, [Inspector- SHO of PS: City Panipat ] alongwith ASI Dharamvir Singh, Head Constable Rajender Singh, Constahble Brij Pal, constable Om Prakash and Constable Raj Singh was present near the outer gate of Bus stand, Panipat in connection with investigation of a Criminal Case, when constable Shyam Lal & Sewa Singh also joined them and after some time two persons carrying a gunny bag were seen coming from inside the Bus Stand. On seeing the police party ahead, they got confused and started walking with fast steps after taking a reverse turn. Feeling suspicious, the Inspector apprehended them with the help of his companions. On query one of them disclosed his name as Pritam Singh son of Hira Singh, resident of Hajri Distt . Ludhiana and the other as Kulwant Singh son of Sh. Ujjagar Singh, resident of Mohalla Rai Majra , village Pail, District Ludhiana. One edge of the gunny bag was held by Kulwant Singh and the other was held by Pritam Singh.
Suspecting that there was some intoxicant drug in the gunny bag, the Inspector gave a joint notice to petitioners under Section 50 of the NDPS Act extending an offer to them that they may opt for giving personal search of the gunny bag before a Magistrate or a Gazetted Officer.
In reply, the alleged accused persons opted for a search of the gunny bag in the presence of a Gazetted Officer. Thereupon, the D.S.P ., Police Station City Panipat was asked to come at the spot who directed the Inspector to take search of the gunny bag which the accused were carrying.
The prosecution examined certain witnesses in support of the prosecution case, material witness being Rajinder Singh, Inspector- SHO . Pratap Singh, D.S.P . and Dharamvir Singh, I.O . The appellants also examined five witnesses as defence witnesses. The case of the appellants was that they were not at the spot when the alleged recovery was made. In fact, they had gone to Delhi to fix the date for marriage of Rupinder Kaur , daughter of Pritam Singh, appellant No.1 . When they were on their way back and had got down on the main road at Panipat at about 6.00 PM and were taking tea on the road side, they were apprehended at that time and the aforesaid narcotic substance was planted on them.
After critical examination of the prosecution as well as defence witnesses, the trial court believed the prosecution story as testified by the police officials and rejected the defence version giving its reasons in support thereof. This resulted in the conviction as mentioned above.
In the appeal filed before the High Court, the primary ground taken by the appellants to assail the judgment of the Sessions Judge was that the provision of Section 50 of the NDPS Act, which are mandatory in nature, were not complied with. This has been the argument before the Supreme Court as well, in the present appeal.
The Supreme Court found from the judgment of the High Court that the High Court has held that Section 50 of the NDPS Act has no application in the facts of this case inasmuch as it was not the person of the appellants which were searched but recoveries were made from the bag which the appellants were carrying. As per the High Court Section 50 of the NDPS Act would not apply, as is clear from the language therein which is attracted only when the person in question is bodily searched. In rendering this opinion, the High Court has referred to the Constitution Bench judgment in case of State of Punjab vs. Baldev Singh and other judgments which have followed the Constitution Bench judgment.
From the facts of this case, Supreme Court was in agreement of the aforesaid position taken by the High Court holding that Section 50 of the NDPS Act has no application. The counsel for the appellant also argued that there was violation of Section 51 of the NDPS Act. He tried to argue that even if Section 50 is not applicable, in those cases, as per Section 51 of the NDPS Act, the provisions of Code of Criminal Procedure relating to search and seizure are applicable. However, there are no foundational facts for this submission. The counsel was candid in accepting that this was not the ground raised by the defence either in the trial court or in the High Court. Therefore such a plea, for lack of any factual foundation, cannot be entertained. On merits it is found that there was, in fact, search from the bags of these persons which resulted in the seizure of opium weighing 4.400 kgs .
Supreme Court saw no reason to give a different finding. Supreme Court thus did not find any merit in the appeal. As is mentioned, apart from sentencing the appellants for 10 years R.I., a fine of Rs.1 ,00,000 /- (Rupees one lakh) each is also imposed on the appellants. The trial court has further stated that in default of payment of fine, the appellants shall undergo further sentence of 2 years R.I. Supreme Court felt that this part of order needs modification. Payment of fine of Rupees one lakh is maintained. However, at the same time Supreme Court directed that in case of default of payment of fine, the appellant shall undergo further sentence for one year.
(See 2014-TIOL-60-SC-NDPS)
