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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DEEPAK GUPTA, J.
Suzie Achayo @ Shivonje - Appellant
Versus
State of Punjab - Respondent
CRA-S No. 1107 of 2021
Decided On : 14-05-2024
Narcotics - NDPS Act - Sections 21, 50 - The court emphasized the mandatory nature of compliance with Section 50 of the NDPS Act, highlighting that failure to inform the accused of her rights rendered the recovery suspect and the conviction unsustainable.
Fact of the Case:
The accused was apprehended by police while carrying a bag suspected to contain narcotics. A search was conducted leading to the recovery of 800 grams of heroin. The accused was convicted under Section 21 of the NDPS Act.
Finding of the Court:
The court found significant contradictions in witness testimonies regarding the timing and manner of the search, leading to doubts about the prosecution's case and the fairness of the trial.
Issues: Whether the police complied with Section 50 of the NDPS Act during the search and if the accused's rights were adequately protected.
Ratio Decidendi: The court held that strict compliance with Section 50 is mandatory, and failure to inform the accused of her right to be searched before a Gazetted Officer or Magistrate invalidates the search and subsequent conviction.
Result: The appeal is allowed, and the conviction is set aside.
JUDGMENT :
Mr. Deepak Gupta, J.
This appeal is directed against judgment dated 30.07.2021 in NDPS Case No.1602-2017 (CNR-PBJL01-016288-2017) passed by the Court of learned Special Judge, Jalandhar, in a case arising out of FIR No.181 dated 31.05.2017 registered at Phillaur, District Jalandhar under Section 21 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the NDPS Act’), whereby the accused Suzie Achayo @ Shivonje (now appellant) has been convicted under Section 21 (c) of the NDPS Act; and vide a separate order of even date, has been sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of ¹ 1 lakh with default sentence of six months.
2. The trial Court record was called and the main appeal itself has been heard.
3.1 As per the prosecution case, on 31.05.2017, Inspector Onkar Singh Brar (PW2), SHO, P.S. Phillaur alongwith other police officials, was present at G.T.Road under bridge, Bus Stand Phillaur in connection with checking bad elements. They were conducting search of vehicles, when they spotted a lady, carrying a bag, crossing the road and coming towards the bridge. At sight of the police party, she became perplexed, started walking briskly and turned towards railway line. Due to suspicion, she was apprehended by Lady SI Rajvir Kaur on instructions of Inspector Onkar Singh. On asking, the foreigner (Korean lady), disclosed her identity. Inspector Omkar Singh revealed his identity to her and told that she was suspected of carrying some intoxicating substance. She was apprised of her legal right to be searched in presence of some Gazetted officer or Magistrate. Accused opted to be searched before a Gazetted officer. Non consent memo Ex.P1 was prepared, upon which accused put her signatures in English.
3.2 On request of Inspector Onkar Singh, DSP Gurmeet Singh Cheema (PW6), a Gazetted police officer reached the spot, who also gave option of search to the accused, as per section 50 of NDPS Act. She reposed faith in him and opted to be searched from him. Her consent memo (Ex.P2) was prepared, upon which she put her signatures in English. Thereafter, on instructions of DSP Gurmeet Singh Cheema (PW6), search of the bag carried by the accused was conducted by SI Rajvir Kaur (PW3), leading to recovery of 800 gms of heroin, from a polythene envelope found inside the bag. Said heroin was converted into a parcel and sealed by Inspector Onkar Singh Brar and DSP Gurmeet Singh Cheema with their seals ‘OSB’ and ‘GS’ respectively. Necessary seizure memo was prepared. Case property was deposited by Inspector Onkar Singh Brar with MHC Satnam Singh (PW2), on reaching the police station.
3.3 Next day, Inspector Onkar Singh produced the case property (after taking from MHC) and the accused before the Ld. Magistrate, who after breaking seals had drawn two samples of 5 gms each and sealed the same and the remaining bulk parcel containing 790 gms heroin with her seal ‘AK’. IO took the case property and deposited the same with MHC on reaching police station. MHC produced one of the sample parcel on 01.06.2017 before Inspector Onkar Singh Brar and thereafter, on 21.07.2017 before DSP Surinder Mohan (PW5), who put their respective unique codes thereon and thereafter, MHC through C. Samuel (PW4) deposited the said parcel with FSL Mohali on 24.07.2017.
3.4 As per report (Ex.PY) of FSL Mohali, Diacetylmorphine salt was found in the recovered contraband. After conclusion of the investigation, final report under Section 173 Cr.P.C was filed in the court so as to prosecute the accused.
4. After hearing both the sides and perusing the documents attached with the report under Section 173 Cr.P.C, a prima facie case for commission of offence punishable Under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, having been made out against the accused, she was charge- sheeted accordingly, to which she pleaded not guilty and claimed trial.
5.1 In order to prove its case, prosecution examined as many as 7
Offering third option of police search under Section 50 NDPS Act, alongside Magistrate or Gazetted Officer, vitiates recovery from clothing; combined with procedural doubts and contradictions, mandat....
The mandatory requirements under Section 50 of the NDPS Act must be strictly followed to ensure an individual's rights during searches; failure to comply renders any recovery and subsequent convictio....
Mandatory compliance with Section 50 of the NDPS Act is essential for lawful searches; failure to do so renders convictions unsustainable.
Non-compliance with Section 50 of the NDPS Act during the search invalidates the recovery of contraband, leading to acquittal.
Compliance with mandatory search procedures under the NDPS Act is essential for conviction; failure to adhere invalidates recovery and conviction.
Non-compliance with Section 50 NDPS Act for personal search renders contraband recovery suspicious and vitiates conviction based thereon, as safeguards are mandatory.
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