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IN THE HIGH COURT OF DELHI
Vibhu Bakhru, J.
Md. Sarvar - Appellant
Versus
State - Respondent
Crl.A. 191 of 2016
Decided On : 24-02-2020
Failure to inform a suspect of their right to be searched before a Gazetted Officer or Magistrate under Section 50 of the NDPS Act invalidates the search.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21 - Conviction upheld by Special Judge for drug offenses - Appellant challenged conviction claiming procedural non-compliance with Section 50 regarding search rights - Court clarified rights must be explicitly stated, failure to inform invalidates search - Key issues included the legality of the search and witness inconsistencies. (Paras 19-28)
(B) Legal Rights - Requirement to inform suspect about the right to be searched before a Magistrate or Gazetted Officer if requested; substantial non-compliance can invalidate evidence obtained. (Paras 21-26)
Facts of the case:
Appellant was convicted for drug offenses following a police operation where heroin was seized from him. The arrest and search were contested on grounds of improperly informing the appellant of his rights under Section 50.
Findings of Court:
Conviction unsustainable due to failure to inform appellant correctly about his legal rights; serious inconsistencies in witness testimonies undermined the prosecution case.
Issues: Whether the search of the appellant complied with the mandatory requirements of Section 50 of the NDPS Act.
Ratio Decidendi: The prosecution's failure to adequately inform the accused of his right to a search in front of a Magistrate or Gazetted Officer renders the search and subsequent evidence inadmissible.
Result: Appeal allowed; appellant acquitted and ordered to be released.
| Table of Content |
|---|
| 1. conviction and sentencing details. (Para 1 , 2 , 3 , 4) |
| 2. evidence from prosecution witnesses. (Para 5 , 6 , 7 , 8 , 9 , 10) |
| 3. requirements of section 50 ndps compliance. (Para 19 , 20 , 21 , 22 , 23 , 24) |
| 4. credibility of witness testimonies. (Para 25 , 26 , 27) |
| 5. grounds for acquittal of the appellant. (Para 44 , 45 , 46 , 48) |
JUDGMENT
Vibhu Bakhru, J. The appellant has filed the captioned appeal, inter alia, impugning a judgment dated 03.09.2015 passed by the Special Judge - NPDS, Patiala House Courts, New Delhi whereby the appellant was convicted of the offence under Section 21 of the Narcotic, Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellant also impugns an order dated 07.09.2015, whereby he was sentenced to serve rigorous imprisonment for a period of ten years and a fine of Rs.1,00,000/- and in default of payment of the said fine, to undergo simple imprisonment for a period of six months.
2. The prosecution's case, in brief, is that on 05.04.2011 at about 10:30 am, secret information was received by the Special Cell CR, New Friends Colony that one Afghan national would be coming at about 03:00 pm to deliver a consignment of drugs to a Nigerian national. A raiding team was constituted and tasked to reach the spot. On their way, the IO tried to include five-six passersby as witnesses, however, they declined to do so.
3. At about 02:40 pm, two persons were identified by the secret informer as the said Afghan and Nigerian nationals. The Afghan national, thereafter, took out a packet from his front pocket and handed over the same to the Nigerian national. At this point, both persons were apprehended. On enquiry, their names were revealed as Emeka Paul (Nigerian national) and Md. Sarvar (Afghan national). They were, thereafter, apprised of their legal rights and notices under Section 50 of the NDPS Act were served to them. Upon the search of Emeka Paul, a white coloured polythene was recovered from him, which had been handed over to him by Md. Sarvar. The said packet contained 800 grams of a cream/brown coloured powder, which tested positive for Heroin. On Md. Sarvar's search, one packet was found tied to his right leg. The said packet too contained 860 grams of a cream/brown coloured powder, which tested positive for Heroin.
4. By an order dated 08.09.2011, charges were framed against the accused. They were charged with the offence punishable under Section 21 (c) read with Section 29 of the NDPS Act. Both pleaded not guilty to the said charges and the matter was set down for trial.
Evidence
5. In order to prove its case, the prosecution examined ten witnesses.
6. ASI Rajender Kumar, SB Special Cell, SR Friends Colony, deposed as PW-1. He deposed that on 05.04.2011, he along with Insp. Satender Sangwan and other staff members had gone to the spot in front of Netaji Subhash Institute of Technology. Insp. Satender Sangwan, who was the IO in this case, had handed over the rukka of this case at 06:45 pm along with four pullandas sealed with the seal of SS, FSL to PW-1. PW-1 stated that he was directed to hand over the rukka to the Duty Officer, PS Special Cell, Lodhi Colony and the pullandas along with other documents to Insp. R.S. Sehrawat, SHO, PS Special Cell. After registration of the FIR, PW-1 collected a copy of the same along with the rukka and came back to his office at Special Cell, SR, New Friends Colony. PW-1 was cross-examined by the Advocate for the accused, Emeka Paul. In his cross-examination, PW-1 stated that he along with other members had left special cell ST at about 12:00 noon. The IO had briefed the members of the raiding party at about 11:0 am in the office of special cell SR. He stated that they had left for the spot in two vehicles, one official vehicle (gypsy) and one private vehicle. He had travelled to the spot in the private vehicle along with HC Vijay Pratap, HC Ram Karan and Ct. Rajesh (who was driving the said vehicle). Insp. Satender Sangwan, SI An
