By TIOL News Service

NEW DELHI, JUNE 30, 2016: ACTING on an information received on 21.05.1998, a batch of officers of N.C.B ., EZU , Calcutta led by a Gazetted Officer proceeded for New Sarat Lodge at 77/ 1A , Acharya Prafulla Chandra Road, Calcutta. After reaching there, the N.C.B . officers searched the room of the appellant herein who was staying in Room No.1 of New Sarat Lodge. The officers asked the appellant in writing as to whether he wanted to be searched in the presence of a Gazetted officer or a Magistrate and informed the appellant that one Gazetted officer was already with them and if he so desired, he might be searched by the said Gazetted officer as well.

After search being done by the raiding party, a polythene packet containing brown coloured powder weighed 250 grams of heroin was recovered from the left side pocket of his wearing trouser. Thereafter, the appellant was arrested on the same day at 22.30 hrs.

As a follow up action of the said recovery, one Anjan De was arrested from the Bidhan Nagar Railway Station at Calcutta by the said N.C.B . officers possessing 245 grams of heroin on 22.05.1998.

The Special Court under the N.D.P.S . Act by its judgment and orders dated 11.04.2002 and 12.04.2002 found the appellant guilty of the offence punishable under Section 21 of the NDPS Act, convicted him thereunder and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000 /-, in default to suffer further rigorous imprisonment for one year.

Challenging the said order of conviction and sentence, the appellant preferred an appeal before the High Court. The High Court, by impugned judgment and order dated 31.08.2004, dismissed the appeal filed by the appellant.

Aggrieved by the said judgment and order, the appellant has filed this appeal by way of special leave before the Supreme Court.

The submission of the counsel appearing for the appellant (accused) was only one and that was in regard to non-compliance of requirements of Section 42 read with Section 50 of the NDPS Act. According to him, the compliance of these Sections being mandatory at the time of search and the same in this case was not done in the manner required by the concerned officials of the Department, the appellant's conviction is rendered legally unsustainable and hence deserves to be set aside.

The point urged by the counsel for the appellant was dealt with by the High Court as under:

"The argument so far as infraction of Section 42 of the said Act is concerned has no merit at all since PW7 was a Gazetted Officer himself and he conducted the raid and also effected the search and seizure from the Appellant.

We have carefully gone through the evidence of P.Ws 4,6, and 7 in this regard and we feel that the provisions of Section 50 of the said Act have been complied with.

We find that the Prosecution has been able to prove its case beyond any shadow of doubt against the Appellant and the points canvassed by Shri Jash have no manner of application in view of the discussion held hereinabove."

The Supreme Court observed,

"We are in complete agreement with the aforementioned finding of the High Court as, in our opinion, it is just, legal and proper calling no interference in this appeal.

Firstly, the High Court has recorded the finding keeping in view the law laid down by this Court in State of Haryana vs. Jarnail Singh & Ors ., (2004) SAR (Criminal) 535. Secondly, since PW-7 himself was the gazetted officer, it was not necessary for him to ensure compliance of Section 42 as held by this Court in Prabha Shankar Dubey vs. State of M.P . (2003) 8 Supreme 565 = (2004) 2 SCC 56 and lastly, so far as compliance of the requirement of Section 50 is concerned, it was found and indeed rightly that the offer to search the appellant was given to him in writing and on his giving consent, he was accordingly searched.

The High Court was, therefore, right in upholding the procedure followed by the raiding party for ensuring compliance of Section 50 and rightly held against the appellant on this issue. We find no ground to take a different view than the one taken by the High Court and accordingly uphold the finding on this issue against the appellant.

We have also carefully examined the record with a view to find out as to whether the appeal involves any ground other than the one urged. Having so examined, we find none except the one urged and decided against the appellant.

In the light of foregoing discussion, we find no merit in this appeal. It thus fails and is accordingly dismissed."

As a result, the bail granted to the appellant by the Court by order dated 17.09.2007 is hereby cancelled and the appellant is directed to surrender before the Trial Court to undergo the remaining period of sentence awarded to him by the courts below.

(See 2016-TIOL-91-SC-NDPS)