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2008(1) JLJ 142
(SUPREME COURT)
S.B. Sinha and Markandey Katju, JJ.
Dilip and another v. State of M.P.
Criminal Appeal No. 1480 of 2004 against the judgment of M.P. High Court, Bench at Gwalior, passed in Criminal Appeal No. 524 of 1998;
Decided on 24.11.2006.
The learned Sessions Judge, Guna, recorded a judgment of acquittal, inter alia, holding that the search and seizure was vitiated in law as mandatory statutory requirements contained in sections 50 and 42 of the NDPS Act were not complied with. The seizure witnesses did not support the prosecution case. The informant also did not comply with the requirements of section 57 of the NDPS Act. Sealing of the contraband materials was not carried out in accordance with law as no responsible officer fixed seal on the seized samples. [Para 2
Held: It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided there for in terms of section 41,42 and 50 of the NDPS Act should be complied with.
The witnesses of the seizure were: PW1 -- a sweeper engaged in the police station and PW2 -- a cycle mechanic who was carrying on his business in front of the police station. They were examined before the learned trial Judge. They have not supported the case of the prosecution at all. They were declared hostile.
Having regard to the testimonies of the said witnesses, as also various other circumstances as noticed in his judgment, the learned Sessions Judge opined that the likelihood of Shri S.S. Tomar having prior information about the matter cannot be ruled out. The learned Judge found that PW10 in his cross-examination accepted that he entertained doubts that the accused had been in possession of contraband and, therefore, he intended to comply with the provisions of section 50 of the NDPS Act. The High Court, however, without meeting the reasoning of the learned Sessions Judge proceeded to take the prosecution case as gospel truth and opined that neither the provisions of section 50 of the NDPS Act nor section 42 thereof were required to be complied with.
Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of section 50 of the Act, although required in law, had not been complied with. Judgment of High Court reversed. [Paras 6, 8, 9 & 12
(2) Narcotic Drugs and Psychotropic Substances Act, 1985 -S.50(4) n Criminal pc., 1973 -- 5.51(2) n search of lady -- can be carried out only by a female in accordance with provisions under 5.50(4) of the Act r/w 5.51(2) of the Code n name of female carrying out the search should also be noted. (1999)6 SCC 172 relied on. [Para 7
(3) Criminal P.C., 1973 -- S.378 -- High Court dealing with judgment of acquittal-- should meet the reasoning of trial Court on which judgment of acquittal is based -- is bound to show that findings of trial Court are not tenable. [Para 19
(4) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss.42 and 43 -- seizure of opium denied by panch witnesses -- judgment of conviction is liable to be set aside. 2002(1) Vidhi Bhasvar 129 (SC) and 2007(1) JLJ 239 (SC) relied on. [Para 21
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Sinha, J. -- 1. The appellant was prosecuted for commision of an offence under sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act", for short) on the basis of a first information report lodged by one Shri S.S. Tomar, the officer in charge of PS Kumbhraj alleging that while he was posted as SHO at the said police station, on 24.12.1996 when he came out of the gate for arresting one Shivraj Meena, he found two persons coming out at a fast speed on a scooter. They were stopped. They disclosed their names as Dilip Singh (the appellant) and Ramsharan. A search of their person was conducted. Nothing was found but on search of the scooter, some black-coloured liquid substance contained in six big plastic bags and one small plastic bag was seen, which were said to be containing opium. Allegedly, the SDOP of the place Raghogarh, named Shri G.S. ladon was informed and 5 kg 890 gm opium was recovered.
2. They were arrested at the spot. The learned Sessions Judge, Guna recorded a judgment of acquittal, inter alia, holding that the search and seizure was vitiated in law as mandatory statutory requirements contained in sections 50 and 42 of the NDPS Act were not complied with. The seizure witnesses did not support the prosecution case. The informant also did not comply with the requirements of section 57 of the NDPS Act. Sealing of the contraband materials was not carried out in accordance with law as no responsible officer fixed seal on the seized samples.
3. The State preferred an appeal before the High Court against the said judgment of acquittal which was registered as Criminal Appeal No.524 of 1998. The High Court reversed the said judgment of the learned Sessions Judge holding:
(1) provisions contained in section 57 of the NDPS Act are not mandatory and there has been a substantial compliance with the said provision as the informant Shri S.S. Tomar did not have any prior information;
(2) the question of obtaining any warrant from a Magistrate or a gazetted officer under section 41 did not arise;
(3) he had also no opportunity to comply with section 42 of the NDPS Act. The conduct of the appellants in speedily crossing the road which aroused suspicion of police officers was enough to show that they had knowledge that contraband was concealed in the scooter.
4. On the aforementioned findings they were sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1lakh each, in default of which they were directed to undergo rigorous imprisonment for a further period of 2 years each.
5. The appellants are, thus, before us.
6. It is now well settled that the offence committed under the Act is a grave one. Procedural safeguards provided there for in terms of section 41,42 and 50 of the NDPS Act should be complied with.
7. We may notice section 50 of the NDPS Act, which reads as under:
"50. Conditions under which search of persons shall be conducted.
(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest gazetted officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the gazetted officer or the Magistrate referred to in sub-section (1).
(3) The gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest gazetted officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or p
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