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High Court Of Delhi
SALIM MOHAMAD @ SALEH MOHD - Appellant
Versus
STATE OF DELHI - Respondent
Decided On : 01/01/1996
NDPS ACT - SECTION 50 - SECTION 42 - SEARCH AND SEIZURE - NOTICE - COMPLIANCE - MANDATORY PROVISIONS - SECTION 50 AND 42 - FAILURE TO COMPLY - CONVICTION QUASHED - SECTION 21/61/85 - APPEAL ALLOWED.
Fact of the Case:
The appellant was convicted under Sections 21/61/85 of the NDPS Act for possession of 4 kgs of heroin. The appellant challenged the conviction on the ground that the mandatory provisions of Section 50 of the NDPS Act, which require that an accused person be informed of their right to be searched in the presence of a Gazetted Officer or Magistrate, were not complied with.
Finding of the Court:
The court found that the prosecution had failed to prove beyond reasonable doubt that the notice under Section 50 NDPS Act informing the appellant of his right under the said section was given before the search was resorted to. The court also found that there was no evidence that the secret information which was received was sent to the superior officer as contemplated under the provisions of Section 42 NDPS Act.
Issues: 1. Whether the mandatory provisions of Section 50 of the NDPS Act were complied with. 2. Whether the mandatory provisions of Section 42 of the NDPS Act were complied with.
Ratio Decidendi: 1. The provisions of Section 50 of the NDPS Act are mandatory and non-compliance thereof would vitiate the conviction even in the cases of chance recovery. 2. The provisions of Section 42 of the NDPS Act are also mandatory and even in a case of chance recovery, the officer concerned is required to adhere to and comply with the provisions of Section 50 of NDPS Act from then onwards.
Final Decision: The court allowed the appeal, quashed the conviction, and acquitted the appellant.
( 1 ) THIS appeal arises out of order and judgment of Shri R. K. Sharma, Additional Sessions Judge, Special Court, N. D. P. S. Act, Delhi convicting the appellant under Sections 21/61/85 of N. D. P. S. Act in S. C. No. 437/94, P. S. Town Hall. The said Judge has sentenced the appellant to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1. 00 lac and in default of payment of fine to further undergo rigorous imprisonment for one more year. It was further ordered that the period for which the appellant had remained in custody shall be set off in view of the provisions contained in Section 428 Cr. P. C.
( 2 ) IN brief the case of the prosecution is that on 21st May 1992 on a prior information the S. H. O. Town Hall with S. I. Ramesh Kumar and S. I. Ram Phal formed a raiding party with Head Constable Dhani Ram and Constable Ramesh Kumar had reached Children Park where they were joined by Jai Kumar Jain independent witness. The raiding party divided itself into three groups and carried out the blocking (Nakabandi) of the three routes at about 12. 10 p. m. The appellant came on a Yamaha motor-cycle bearing registration number DBX 3843 from the side of Community Hall. On the pointing out by the informer the raiding party tried to stop the appellant, but he fled his motor-cycle to the parking side where the party headed by S. I. Ramesh Kumar apprehended the appellant. It is further alleged on record that the appellant was informed of his right under Section 50 of the N. D. P. S. Act vide notice Exhibit Public Witness. 2/a of being searched, if he so desired, in the presence of a Gazatted Officer or a nearest Magistrate, but the appellant declined to be searched. The appellant did not avail of the option given to him with regard to search consequent whereupon he was searched there itself and two polythene packets each found to be containing 2 Kgs. of Smack were seized from the appellant. The said two packets were sealed with the seals of GCD and RK. It is further pointed out by Counsel for State that CFSL form was also prepared on the spot and got signed by the witnesses. The seizure memo Exhibit Public Witness 2/b was also prepared. Rukka was sent to the Police Station for recording the FIR at the Police Station which was recorded by Head Constable Gyan Chand which is Exhibit Public Witness 6/a. It is alleged that the FIR was recorded by Head Constable Cyan Chand at 1. 40 p. m. Inspector Gursharan Dass Public Witness 2 S. H. O. Town Hall has proved the notice under Section 50 and the seizure memo being Exhibits Public Witness 2/a and Public Witness 2/b respectively. He has further proved that the polythene bags contained 4 Kgs. of Heroin and that CFSL forms were deposited with all the seized articles in the Malkhana. Prosecution has also examined Head Constable Inder Raj Singh as Public Witness 1 who was Mohharer Malkhana P. S. Town Hall, on 21st May 1992. Public Witness I has stated that Public Witness 2 had deposited four parcels and one CFSL forms duly sealed with the seals of GCD and RK. Along with these parcels the motor-cycle of the appellant mentioned above with the bunch of keys along with helmet was also deposited in the Malkhana register of the Malkhana containing the relevant entries is Exhibit Public Witness 1/a, Prosecution had examined one Mr. N. K. Prasad as Public Witness 3 who is Senior Scientific Officer-cum-Assistant Chemical Examiner CFSL, New Delhi. The said Chemical Examiner CFSL has admitted that the purety of the samples was not tested and that he could not say if. 00001 % mg. Heroin is added to 10 gms. of Brown Powder it will give positive test of Heroin. He has also testified that adding of morfeen in Brown Powder would not respond to the test of Heroin. His report is Exhibit Public Witness 1 / B. The ownership of the motor-cycle has been proved by Public Witness 4 Parveen Singh who is Dealing Assistant, Transport Authority, Sheikh Sarai, New Delhi while Public Witness 5 Const
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