1. Appeal against conviction under Section 15, Narcotic Drugs and Psychotropic Substances Act, 1985 for possession of chura-post. (Para 1 , 2 )
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2000 Supreme(SC) 2035
SUPREME COURT OF INDIA
M.B.Shah : S.N.Phukan
Radhey Sham
Versus
State Of Haryana
Case No. : 846 of 1999
Date of Decision : 12/13/00
Compliance with Section 50 of the NDPS Act regarding the right to be searched before a Gazetted officer or Magistrate validates the search, and procedural irregularities or the absence of independent witnesses do not vitiate recovery if official testimony is credible.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 15 - Section 50 - Search and seizure - Compliance with requirements of providing notice to the accused to be searched in the presence of a gazetted officer or Magistrate - If the prosecution establishes that such notice was given and the accused's preference was honored, the search is legal and not vitiated. (Para 5)
(B) Procedural validity - Mention of the FIR number on a recovery memo does not vitiate the recording of the FIR or the legality of the recovery process. (Para 6)
(C) Independent witnesses - Non-joining of independent witnesses from the locality does not invalidate the prosecution's case if it is demonstrated that efforts were made to secure them but they were unwilling to participate in the investigation. (Para 6)
(D) Evidence of injury - The absence of physical injuries on an accused after a vehicle accident is not a necessary requirement nor is it sufficient grounds to infer that the accused was not present in the vehicle. (Para 6)
Facts of the case:
During a police check, a vehicle failed to stop, crashed and overturned. One individual was apprehended at the spot. A search conducted in the presence of a gazetted officer revealed eight bags of poppy husk totaling 320 kgs. The accused was convicted under the relevant narcotics act and sentenced to ten years' rigorous imprisonment and a fine.
Findings of Court:
The court found the prosecution's evidence reliable, particularly the testimony of the gazetted officer. The defense's theory of false implication was found to be without substance as the testimony of the defense witness was contradictory to the statement of the accused under Section 313 of the Criminal Procedure Code.
Issues: Whether the search was invalid due to non-compliance with Section 50 of the Act; whether the FIR number on the recovery memo invalidated the recovery process; and whether the absence of independent witnesses or injuries to the accused compromised the prosecution's case.
Ratio Decidendi: The court held that when the mandatory notice under Section 50 of the Act is administered, the search is lawful. Minor procedural discrepancies, such as the inclusion of an FIR number on a recovery memo or the inability to secure independent witnesses, do not outweigh the credible testimony of official witnesses.
Result: Appeal dismissed.
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Prosecution case based on recovery from van after chase; accused claimed false implication due to police dispute with van owner. (Para 3 , 4 )
3. Submission that Section 50 notice was not given is without substance as no suggestion was made to witnesses and notice was given. (Para 5 )
4. Mention of FIR number on recovery memo does not vitiate recording of FIR; independent witnesses not required if none available. (Para 6 )
5. Appeal dismissed; conviction and sentence under Section 15 of the NDPS Act confirmed. (Para 8 )
6. Is failure to provide a separate Section 50 notice fatal to the prosecution in a case of recovery from a vehicle?
No, Section 50 notice applies to personal search. No suggestion of prior illegal search was made, and the accused was informed of his right under the provision. (Para 5 )
7. Does the mention of an FIR number on a recovery memo vitiate the recording of the FIR?
No, the mere mention of the FIR number on the recovery memo does not vitiate the recording of the FIR. (Para 6 )
8. Is a conviction invalid due to the absence of independent witnesses when the prosecution explains their unavailability?
No, a conviction is not invalid if the prosecution explains that independent witnesses were unwilling to join the investigation. (Para 6 )
9. Can an absence of injury on the accused after a vehicle overturns disprove his presence in the vehicle?
No, it is not necessary that an occupant will always sustain injury when a vehicle overturns, so the absence of injury does not disprove presence. (Para 6 )
(1) THIS appeal is filed against the judgment and order dated 8/2/1999 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 159-SB/1996 whereby the High Court dismissed the appeal and confirmed the judgment and order dated 2/2/1996 passed by the Additional Sessions Judge in Sessions Case No. 24/1995. By the impugned order Additional Sessions Judge has convicted the appellant under the provisions of Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentenced him to suffer rigorous imprisonment for 10 years and also to pay a fine of Rs. 1,00,000.00 and in the event of default in the payment of fine, to undergo rigorous imprisonment for one year.
(2) THE prosecution version is that on 18/2/1995 SI/SHO Baljit Singh along with AS! Subhash Chander, Head Constable, Om Prakash and other police personnel were present at village Taiwan! in connection with Nakabandi, a Maruti van of white colour came towards them and was signalled to stop but instead of stoppingthe same, was driven with speed. After going at some distance the van turned turtle and two persons from the said van alighted and started running away. After some distance the present appellant was caught and another person succeeded in running away. On checking the van, 8 bags were found in it. On suspicion, Sl Baljit Singh served notice on the appellant to the effect that he wanted to take search of the bags and whether accused was interested to give search in presence of the gazetted officer or Magistrate. The appellant replied that he be searched in presence of a gazetted officer. Hence, Public Witness-1 LaT Chand, DSP Siwani, Head Quarters at Hissar was called for through wireless message by the SHO Baljit Singh. When he came there, he saw the Maruti van. He found the van in a turtled position on the left side of the road and the accused was sitting near the van. In his presence, search was carried out and 8 bags of chura-post were found. Each bag was having 40 kgs of chura-post. After completing the necessary panchnama accused was arrested.
(3) IN order to prove the prosecution case, prosecution examined Public Witness-1 Lal Chand, DSP, Public Witness-2 ASI Subhash Chander, Public Witness- 3 Sl Baljit Singh and Public Witness-4 Head Constable Sudhinder Kumar, and also produced the chemical analyser report. Appellant denied the charge and submitted that nothing was recovered from him and that at the instance of Head Constable Om Prakash, who belongs to his village, he has been falsely implicated in the case. Accused was also got examined, defence witness Pawan Kumar, who was the owner of the Marutivan has stated that on 16/02/1995 Sl Baljit Singh came to his shop and demanded the Maruti van for his personal use. Thereafter, on the next day Maruti van was given to him (Sl Baljit Singh). On the following day a constable came and informed him to take away Maruti van from the police station, Siwani. There he found that the Maruti van was damaged due to accident. It is his further say that he told Baljit Singh that he should get it repaired. Hearing this, he became furious and informed him that he should come there on the next day. On the next day i.e. on 19/02/1995 when he went to the police station, he was informed that the van was involved in a criminal case. He was also informed that if he argued further he would also be implicated in the case. He denied the acquaintance with the appellant.
(4) THE trial court as well as the Appellate Court after appreciating the entire evidence arrived at the conclusion that there is no substance in the defence raised by the appellant. Court relied upon the evidence of the DSP Public Witness-1 in whose presence the van was searched and 8 bags of chura-post were found. Public Witness-2 ASI Subhash Chander has also narrated the incident and has stated that during the Nakabandi he signalled the van to stop but the driver did not stop it and tri
