2000 (2) TMI 793 - SC - Customs

Appellant was convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act 1985 for possession of five small plastic packets of brown sugar Held that - Whether in the absence of any corresponding entry in any of the police records it is difficult for us to believe the mere oral vibration made by P.W. 1 that he asked the appellant whether he should require the search to be conducted in the presence of any one of the above officers and that the appellant politely declined the offer. We are of the considered view that in the light of his non-compliance with the provisions of Section 42(1) and (2) of the Act besides non-compliance with the requirement in Section 50 of the Act it is difficult to sustain the conviction and sentence of the appellant. The graver the consequences the greater must be the circumspection to be adopted. We take into account that the appellant otherwise will have to be subjected to a longer period of sentence as Section 31 of the Act was also invoked in the present situation for adopting such greater circumspection for scrutinising the evidence. In the result we allow this appeal and set aside the conviction and sentence passed on the appellant as per the impugned judgment.

Summary

Issues:
1. Conviction and sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Non-compliance with Section 50 and Section 42 of the Act.

Analysis:

Issue 1: Conviction and sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985:
The appellant was convicted under Section 21 of the Act for possession of brown sugar and sentenced to rigorous imprisonment for 15 years and a fine of Rs. 1,50,000. The trial Court considered the appellant's previous conviction under the same section and imposed an enhanced sentence. The High Court upheld the conviction and sentence. The Supreme Court appointed an amicus curiae to represent the appellant but faced repeated absences. Due to the appellant's prolonged incarceration, the Court proceeded with the appeal. However, the Court found glaring infirmities in the case.

Issue 2: Non-compliance with Section 50 and Section 42 of the Act:
The Court identified two significant non-compliances in the case. Firstly, there was a failure to comply with Section 50, as no officer or Magistrate was called before the search, as required by law. The police officer's assertion that the appellant declined the presence of such an officer lacked independent corroboration. Secondly, there was a violation of Section 42, which mandates the recording of information and sending it to the superior officer before conducting a search. The Court emphasized the importance of these procedural safeguards and highlighted the implications of non-compliance. Due to the non-compliance with these provisions, the Court found it difficult to sustain the conviction and sentence, leading to the allowance of the appeal and the appellant's immediate release unless required in another case.

In conclusion, the Supreme Court set aside the conviction and sentence imposed on the appellant due to the non-compliance with essential procedural requirements under the Narcotic Drugs and Psychotropic Substances Act, 1985. The Court emphasized the significance of adhering to legal procedures to ensure fair trials and upheld the appellant's right to a proper legal process.