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2020 Supreme(Bom) 871
IN THE HIGH COURT OF BOMBAY
M.S. Sonak, M.S. Jawalkar, JJ.
Ivan Miguel - Appellant
Versus
State (as - Respondent
Criminal Appeal No. 57 of 2016
Decided On : 12-10-2020
Dolorosa Chiquita Tulkar, Advocate, Pravin Faldessai, Advocate
The provisions of Section 50 of the NDPS Act, which require a search to be conducted in the presence of a Gazetted Officer or a Magistrate, are not attracted where the contraband is recovered from a bag, briefcase, or container, etc. carried by the person, and not from the person's body.
Headnote:
NDPS ACT - [POSSESSION OF NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES] - [SECTIONS 22(C), 21(B), 20(B)(II)(B)] - [SUMMARY] The Court upheld the conviction of the Appellant for possession of narcotic drugs and psychotropic substances under Sections 22(c), 21(b), and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The Court found that the Prosecution had proved its case beyond reasonable doubt based on the testimonies of the Chemical Analysts and the compliance with the procedural safeguards under the NDPS Act. However, the Court reduced the sentence of rigorous imprisonment from 15 years to 12 years under Section 22(c) considering the Appellant's age and the reformative element in sentencing.
Fact of the Case:
The Appellant was apprehended on the basis of prior information received by the police. A raid was conducted at a football ground where the Appellant was found in possession of a bag containing various substances, including MDMA, cocaine, LSD, and charas. The substances were tested and confirmed to be narcotic drugs and psychotropic substances. The Appellant was charged under Sections 22(c), 21(b), and 20(b)(ii)(B) of the NDPS Act.
Finding of the Court:
1. The Court found that the testimonies of the Chemical Analysts, PW.1 and PW.5, were clear and cogent, and that they had conducted the necessary tests to establish the presence of MDMA, cocaine, LSD, and charas in the substances seized from the Appellant. 2. The Court held that the provisions of Section 50 of the NDPS Act, which require a search to be conducted in the presence of a Gazetted Officer or a Magistrate, were not attracted in this case since the contraband was recovered from the Appellant's bag and not from his person. 3. The Court further held that even if Section 50 was attracted, the evidence on record established compliance with the mandate of the provision. 4. The Court rejected the Appellant's contention that there was a breach of the provisions of Sections 42 and 43 of the NDPS Act, which deal with the procedure for conducting searches, finding that the evidence supported compliance with these provisions. 5. The Court also rejected the Appellant's contention that there was a breach of the provisions of Sections 52 and 52A of the NDPS Act, which deal with the handling and storage of seized property, finding that the Prosecution had taken all necessary precautions to prevent tampering with the evidence.
Issues: 1. Whether the Prosecution had proved beyond reasonable doubt that the Appellant was in possession of narcotic drugs and psychotropic substances. 2. Whether there was a breach of the provisions of Section 50 of the NDPS Act, which require a search to be conducted in the presence of a Gazetted Officer or a Magistrate. 3. Whether there was a breach of the provisions of Sections 42 and 43 of the NDPS Act, which deal with the procedure for conducting searches. 4. Whether there was a breach of the provisions of Sections 52 and 52A of the NDPS Act, which deal with the handling and storage of seized property.
Ratio Decidendi: 1. The Court held that the testimonies of the Chemical Analysts were sufficient to establish the presence of narcotic drugs and psychotropic substances in the substances seized from the Appellant. 2. The Court held that the provisions of Section 50 of the NDPS Act were not attracted in this case since the contraband was recovered from the Appellant's bag and not from his person. 3. The Court held that even if Section 50 was attracted, the evidence on record established compliance with the mandate of the provision. 4. The Court held that there was no breach of the provisions of Sections 42 and 43 of the NDPS Act, as the evidence supported compliance with these provisions. 5. The Court held that there was no breach of the provisions of Sections 52 and 52A of the NDPS Act, as the Prosecution had taken all necessary precautions to prevent tampering with the evidence.
Final Decision: The Court upheld the conviction of the Appellant under Sections 22(c), 21(b), and 20(b)(ii)(B) of the NDPS Act. However, the Court reduced the sentence of rigorous imprisonment from 15 years to 12 years under Section 22(c) considering the Appellant's age and the reformative element in sentencing.
JUDGMENT
M.S. Sonak, J. - Heard Ms. Dolorosa Tulkar, the learned Counsel for the Appellant and Mr. Pravin Faldessai, the learned Additional Public Prosecutor for the State.
2. This Appeal is directed against the Judgment and order dated 30th June/14th July, 2016, made by the learned Special Judge, in NDPS Criminal Case No.16/2014, by which the Appellant was held guilty of the offences under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for 15 years and payment of fine of Rs.1,00,000/-, and in default of payment of the fine, to undergo further rigorous imprisonment for one year.
3. The Appellant, by the same Judgment and Order, was also held guilty of the offences under Sections 21(b) and 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo rigorous imprisonment for 7 years and payment of fine of Rs.50,000/- for each of the offences and in default of payment of fine, to undergo further rigorous imprisonment for one year and six months, respectively.
4. The Prosecution case is that on 14/1/2014, the Investigating Officer (IO) Dinesh Gadekar (PW.9), the Police SubInspector of ANC Police Station, received reliable information that one foreign national, male person, aged between 30-35 years, medium built, fair complexion, average height, wearing a green colour T-shirt and white colour pant, will be coming to deliver narcotic drugs on 14/1/2014 between 0.00 hours to 01.00 hours to his prospective customers at Football Ground, Ashvemwado, Mandrem, Pernem, Goa. Thereupon, PW.9 reduced this information into writing and sent a copy of the same to Dy. S.P. VamanTari (PW.3) for his information. He then secured the presence of two Panchas, informed them about the information received, showed them the seal of the Anti Narcotic Cell Police Station 4, with Ashoka Emblem, along with the Panchas and some other officers of the ANC proceeded to the stated spot for the raid. At about 0.10 hours, they saw the Appellant coming towards the football ground. Thereupon, the raiding party members surrounded the Appellant. PW.9 introduced himself and other members of the raiding party to the Appellant. He was informed about the information received and that his search was to be conducted. The Appellant was informed of his right to be searched before a Gazetted Officer or a Magistrate. The Appellant was also given the offer to search the members of the raiding party if he so desired. The Appellant declined both the offers. The bag carried by the Appellant was first searched. In it the raiding party found one transparent autopress polythene packet, containing whitish brownish colour crystal form substance, one autopress polythene packet containing whitish colour powder and one whitish colour plastic bottle with a white colour cap containing some liquid. The raiding party, with the drug detection kit which they had with them, carried out tests and found that one of the substances was MDMA which was then packed, sealed and marked as Exhibit I. The whitish colour powder was found to be cocaine. It was packed, sealed and marked Exhibit II. The liquid was poured in a vial, and it was tested and found to be LSD. This was marked as Exhibit III. The bottle in which the liquid was found, was also weighed, packed, sealed and was marked Exhibit IV. The raiding party found another polythene packet containing pieces of black substance in different sizes and shapes in the bag of the Appellant. This was tested and found positive for charas. This was packed, sealed and marked as Exhibit V. All such substances were weighed. The weight of the MDMA was found to be 72 grams, cocaine 5.5 grams, LSD liquid 2.5 grams and charas 785 grams. All these substances were sent for chemical analysis, and the chemical analysis officers confirmed that these substances were indeed MDMA, cocaine, LSD and charas, respectively.
5. The Prosecution accordingly filed ch
