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IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Chitaranjan Mandal - Appellants
Vs.
State of Chhattisgarh - Respondent
Criminal Appeal No. 401 of 2003
Decided On: 14.08.2014
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(ii)(B) - Code Criminal Procedure, 1973 - Section 374(2) - Rigorous imprisonment - Appeal against the judgment – Jurisdiction - Learned counsel appearing on behalf of the appellant raised two principal contentions - That the mandatory provision contained in Section 42 of the NDPS Act have not been complied with as the information received about the commission of the said offence was not reduced in writing and same was not sent to the superior officer - That the mandatory provision of Section 50 of the NDPS Act have not been complied with, as the accused/appellant was not informed of their right as to whether he wanted to be searched before the Executive Magistrate or Gazetted Officer. Therefore, conviction recorded and sentence awarded deserves to be set aside - Opposing the submission advanced by learned counsel for the appellant/accused, on the other hand, Mr. Prasun Bhaduri, learned Govt. Advocate appearing on behalf of the State/respondent would submit that the information received by the Police Officer was for Crime No. 28/2002 for the offence under Sections 279 and 337 of the Indian Penal Code and there was no such information received by the Police Officer about the commission of offence under NDPS Act and, therefore, the compliance of Section 42 of the NDPS Act was not necessary in the facts and circumstances of the case. He would further submit that section 50 of the NDPS Act has fully and faithfully been complied with. He would lastly submit that section 50 of the NDPS Act would not be applicable, as this is a case chance recovery of the Ganja in question – Held, This apart, let the matter be considered from other angle, the recovery of contraband (Ganja) in the case in hand was chance recovery of the narcotic drug during the search of the suitcase of the appellant kept in his possession, and therefore, the provision of Section 50 of the NDPS Act would not be attracted as held by their Lordships of the Supreme Court in Sunil Kumar case - As far as the applicability of Section 50 of the Act in a chance recovery is concerned, the issue is no longer res integra in view of the decision of the Constitution Bench in Baldev Singh - There is an additional reason for holding that Section 50 of the NDPS Act is not attracted in the case in hand. It is well settled that Section 50of the NDPS Act is applicable only where search of a person is involved, and is not applicable, where, no search of a person is to be conducted. Extremely recently, their Lordships of the Supreme Court in Krishna Kumar v. State of Haryana 2014 AIR SCW 3667 has held - It is clear from the reading of the aforesaid provision that it is applicable only where search of a person is involved. It is not made applicable in those cases where no search of a person is to be conducted. In the instant case the appellant was carrying a bag which was to be searched and on his request Chet Ram was summoned in whose presence search was conducted which pertained to a bag. In Ajmer Singh v. State of Haryana (2010) 3 SCC 746 : (AIR 2010 SC (Supp) 582 : (2010 Cri LJ 1899) : 2010 AIR SCW 1494) this aspect is specifically considered and dealt with. Following earlier Constitution Bench judgment, the Court held that when search and recovery from a bag, brief case container etc. is to be made, provisions of Section 50 of the Act are not attracted - In the present case, the appellant/accused was carrying a suitcase, which was searched in presence of the appellant. Thus, following the principles laid down in the above referred to decision, the provision contained in Section 50 of the NDPS Act would not be attracted as search of a bag is different from search of a person or accused - Appeal dismissed
Sanjay K. Agrawal, J.
1. Invoking the appellate jurisdiction of this Court under Section 374(2) of the Code Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), appellant herein Chitaranjan Mandal has preferred this statutory appeal against the judgment of conviction and order of sentence dated 27-1-2003 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act'), Bestar at Jagdalpur in Special Case No. 39/2002, whereby and whereunder the appellant has been convicted for commission of an offence punishable under Section 20(b)(ii)(B) of the NDPS Act and sentenced to undergo rigorous imprisonment for four years and six months and to pay fine of Rs. 20,000/-, in default of payment of fine amount, to undergo additional rigorous imprisonment for one year. The prosecution case in brief as unfolded during the course of trial is as under:--
1.1 On 20-9-2002, Mohan Lal Pandey (PW-4), Assistant Sub-Inspector, Police Station Dornapal after making endorsement of his departure in Rojnamcha Sanha No. 634 (Exhibit P- 10C) along with member of his staff went to village Manikonta for investigation of Crime No. 28/2002 registered for the offence punishable under Sections 279 and337 of the Indian Penal Code.
1.2 It is further case of the prosecution that on the said day i.e. on 20-9-2002, while the police party was coming back from village Manikonta, near cremation ground of village Penta, they saw that the appellant-Chitaranjan Mandal along with one suitcase standing on the road, and when they went near the appellant, the accused/appellant seeing the police party, he got scared and tried to move away from the spot. Upon this, he was nabbed by the police and upon examination of suitcase, smell of some contraband like ganja (Cannabis) was coming out from the suitcase. Then, he was given notice Exhibit P-2 under Section 50 of the NDPS Act to get himself searched either before a Magistrate or before a Gazetted Officer. Mohan Lal Pandey (PW-4) and other members of the staff gave search of themselves to the appellant vide Exhibit P-3. Then, the appellant gave his consent and agreed for search by the police officer and thereafter, the Panchnama of suitcase was made vide Exhibit P-4 and recovered item was identified as Ganja (Cannabis) vide Exhibit P-5. They arranged the weighing machine and its identification vide Exhibit P-6, thereafter, steps were taken by the Police Officers to weigh the article, they found 9 kg. of Ganja (Cannabis). Out of the said contraband, two packets of 25-25 grams were taken out as sample and rest of the contraband sealed vide Panchnama Exhibit P-7. The said seizure was made in presence of witnesses i.e. Suresh Singh Chouhan (PW-2) and Suryapal Singh (PW-3) Vide Exhibit P-8. Thereafter, the appellant was arrested vide Exhibit P-9. First Information Report was registered on 20-9-2002 at 18:46 hours vide Exhibit P-13 for the commission of offence under Section 8/20(Kha) of the NDPS Act and an information was given to the Additional Superintendent of Police, Sukma, District Dantewada under Section 57 of the NDPS Act vide Exhibit P-15 on 21-9-2002. The sample of seized article (Ganja) was sent for its chemical analysis vide Exhibit P-18, and the report dated 30-9-2002 was received from the Chemical Analyst vide Exhibit P-20, in which, seized article was found to be Ganja, which is Cannabis within the meaning of Section 2(iii)(b) of the NDPS Act. Thereafter, a charge-sheet was filed against the appellant for commission of the offence punishable under Section 20(b)(ii)(B) of NDPS Act for possession of 9 kg. Ganja (Cannabis).
1.3 Statement of the witnesses were recorded under Section 161 of the Cr.P.C. After completion of the investigation, charge-sheet was filed under Section 20(b)(ii)(B) of the NDPS Act against the appellant before the Special Judge under NDPS Act, Jagdalpur.
1.4 Appellant/accused denied the charges and entered into defence by stati
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