[1] Neutral Citation Number 2022/DHC/004767

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IN THE HIGH COURT OF DELHI AT NEW DELHI

BEFORE

HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

+

CRL. A. No. 992 of 2017

Between:-

KAMRUDDIN

S/O SHRI ABDULLAH

R/O 3930, URDU BAZAR, JAMA MASJID, DELHI

.....APPELLANT

AND

STATE (NCT OF DELHI)

..... RESPONDENT

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Pronounced on

:

10.11.2022

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J U D G M E N T

1. This appeal under Section 374(2) of the Code of Criminal Procedure,

1973 (Cr.P.C) is directed against the judgment of conviction and order of

sentence dated 31.07.2017 in SC number 13/2017, passed by Special Court

(NDPS) District Central, Tis Hazari Court, Delhi.

Signed By:PRATIMA

Signing Date:11.11.2022

21:33:36

Signature Not Verified

[2] Neutral Citation Number 2022/DHC/004767

2. This appeal is being taken up for out of turn hearing for the reason

that the maximum sentence awarded to the appellant is 12 years rigorous

imprisonment with fine stipulation and in lieu of fine the appellant has to

undergo six months further simple imprisonment. As on 29.09.2021, the

appellant has already undergone a period of 8 years 2 months 19 days

rigorous imprisonment.

3. The learned counsel appearing for the appellant/accused submits that

he would confine his submissions only to the extent of non-compliance of

the provisions of Section 50 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (in short, ‘NDPS Act’). He submitted that the notice

under Section 50 of the NDPS Act (Ex.PW5/A) clearly indicates that there is

a non-compliance with the mandate of Section 50 of the NDPS Act resulting

in causing serious prejudice to the appellant. He has also placed reliance on

Ex. PW5/B to indicate that the personal search of the appellant was

conducted; however, the appellant was not informed of his legal right of his

personal search in the presence of Gazetted Officer or Magistrate.

4. Learned Counsel for the appellant has placed reliance on the decision

of the Hon’ble Supreme Court in the matters of K. Mohanan Vs. State of

Kerala¹, S.K. Raju @ Abdul Haque @ Jagga Vs. State of West Bengal²,

Sanjeev and another Vs. State of Himachal Pradesh³and the decision of

this Court in the matter of Parveen Singh @ Kalia Vs. State of NCT of

Delhi⁴, Mahindra Singh Vs. State⁵ and Akhilesh Bhartiya Vs. State⁶.

5. Learned APP for the State opposed the submission and he states that

1 (2000) 10 SCC 222

2 (2018) 9 SCC 708

3 (2022) 6 SCC 294

4 2010 SCC OnLine Del 3920

5 2011 SCC OnLine Del 1709

6 2020 SCC OnLine Del 306

Signed By:PRATIMA

Signing Date:11.11.2022

21:33:36

Signature Not Verified

[3] Neutral Citation Number 2022/DHC/004767

the impugned judgment of conviction and sentence is strictly in accordance

with law. The requirement of Section 50 of the NDPS Act has been strictly

complied with and an option was given to the appellant to opt for his

personal search in the presence of a Magistrate. Since the appellant did not

opt for this option, therefore, the prosecution cannot be blamed and on this

ground the conviction and sentence cannot be interfered with. According to

him, the impugned judgment of conviction and sentence does not call for

any interference. Learned APP for the State counsel has relied on the

decision of the Hon’ble Supreme Court in the matters of State of Punjab

Vs. Baljinder Singh and Anr.⁷ and Dayalu Kashyap Vs. State of

Chhatisgarh⁸.

6. I have heard Shri Harsh Prabhakar, learned counsel appearing for the

appellant and Shri Utkarsh, learned APP appearing for the State. I have also

perused the record.

7. The case of the prosecution in brief is that on 02.08.1991 at about

7:30 PM, Sub Inspector Satpal Singh received secret information that the

appellant is likely to supply