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1996 Supreme(Ori) 152
High Court Of Orissa
DEEPAK MISRA
BALAJI SAHU - Appellant
Versus
STATE - Respondent
J. CRI. A. 169 Of 1994
Decided On : 09/24/1996
Sangram Das, Sujata Das
Mandatory provisions of the NDPS Act, such as the right to be informed of the right to be searched in the presence of a Gazetted Officer or an Executive Magistrate and the requirement to keep seized articles in safe custody, must be strictly complied with.
Headnote:
NDPS ACT - SECTION 50 - SECTION 42(2) - SECTION 55 - SEARCH AND SEIZURE - SAFE CUSTODY OF SEIZED ARTICLES - COMPLIANCE WITH MANDATORY PROVISIONS - INTERPRETATION AND APPLICATION.
Fact of the Case:
The appellant was convicted under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of heroin and ganja. The prosecution's case was that the appellant was found in possession of the drugs during a search conducted by the police. The appellant denied the charges and claimed that he was falsely implicated due to a family quarrel.
Finding of the Court:
The High Court found that the search and seizure was not conducted in compliance with the mandatory provisions of Section 50 of the NDPS Act, as the appellant was not informed of his right to be searched in the presence of a Gazetted Officer or an Executive Magistrate. The Court also found that there was no adequate proof that the seized articles were kept in safe custody, as required under Section 55 of the Act.
Issues: 1. Whether the search and seizure was conducted in compliance with the mandatory provisions of Section 50 of the NDPS Act? 2. Whether there was adequate proof that the seized articles were kept in safe custody, as required under Section 55 of the Act?
Ratio Decidendi: 1. The Court held that the search and seizure was not conducted in compliance with Section 50 of the NDPS Act, as the appellant was not informed of his right to be searched in the presence of a Gazetted Officer or an Executive Magistrate. The Court relied on the decision of the Supreme Court in Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, which held that the officer conducting the search must inform the person to be searched of their right to be searched in the presence of a Gazetted Officer or a Magistrate. 2. The Court held that there was no adequate proof that the seized articles were kept in safe custody, as required under Section 55 of the Act. The Court noted that the police officer who conducted the search had not sealed the seized articles and that there was a delay of 43 days between the seizure and the production of the articles in Court. The Court relied on the decision of the Supreme Court in Valsala v. State of Kerala, which held that the articles seized must be kept in proper custody and proper form so that the Court can be sure that what was seized was sent for chemical examination.
Final Decision: The High Court set aside the conviction and sentence of the appellant and ordered his release.
DEEPAK MISRA, J.
( 1 ) GONE are the days of yore when an Emperor like Babar, at the cost of his life prayed for an ailing sun; vanished are the days of old when an obedient son like Rama chose his way to the forest sacrificing the royal throne; and disappeared is the era when a casabianca stood imbedded on the burning dock in honour of his father's command. Here is an unfortunate case where the father and the brother, succumbing to their inferior endowments from nature, arrive at the police station and lodged a written report (Ext. 2) complaining about the drug addiction as well as the clandestine drug business of the appellant. In promptitude a station diary entry was made to that effect and information was sent to the Town Inspector. Raiding party inclusive of independent witnesses went to the house of the informantwhere the appellant resided and recovered from his custody three small packets containing 1350 ml. grams of heroin and another small packet containing 1150 ml. grams of 'ganja' from his pant pocket along with a 'chillam' and some cash. The A. S. I. (P. W. 6) got the heroin and ganja packets weighed by a goldsmith and sealed the same in presence of witnesses and prepared a seizure list. The accused along with the seized articles were brought to the police station. The A. S. I. handed over the case to the another Sub Inspector. Subsequently, the Officer-in-charge of the concerned police station (P. W. 8) took charge of the case as per the direction of the Additional Superintendent of Police, Puri. The seized packets were sent for chemical examination and on completion of other formalities, charge-sheet was submitted against the accused.
( 2 ) THE accused took the plea of complete denial and false implication due to family quarrel.
( 3 ) TO bring home the charges, the prosecution examined eight witnesses in all and certain documents, namely, the seizure list, First Information Report, Chemical Report, forwarding report and others were brought on record, P. W. 1 is an independent witness to the seizure; P. W. 2 is the goldsmith who weighed the articles on spot; P. W. 3 is the father; P. W. 4 is the brother of the accused; P. W. 5, the A. S. I. of Police, was a member of the riding party; P. W. 6 is the Sub-Inspector of Police of Kumbharapara Police station; P. W. 7 is the Town Inspector; and P. W. 8 is the Officer-in-charge who subsequently took charge of the investigation and submitted the charge-sheet under Section 20 (b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act' ).
( 4 ) ON analysis of the materials on record and repelling the submissions of the accused with regard to non-compliance of mandatory provisions enjoined under Sections 42 (2) and 50 (1) of the Act and absence of proof in regard to the safe custody of the articles, the learned trial Judge found the accused guilty of the alleged offences and accordingly sentenced him to undergo R. I. for a period of ten years and to pay a fine of Rs. 1,00,000/- (Rupees one lakh), in default, to undergo further R. I. for two years.
( 5 ) MISS Sujata Das, the learned counsel for the appellant has contended that the learned trial Judge has completely erred in holding that there has been compliance of Section 50 and Section 42 (2) of the Act. She has strenuously urged that the learned Judge has dealt with the aspect of safe custody of the articles in an extremely cryptic manner though there is no acceptable evidence that the seized articles were kept in safe custody. Her further submission is that the seized articles are to be kept in the custody of the Officer-in charge of Police station as provided under Section 55 of the Act, but the same has not been done which makes the prosecution version unbelievable. She has also proposed that as the prosecution has not been able to adequately explain with regard to the delay in sending the seized articles for chemical examination as well as the safe custody of the same during the interregnum p
