2009 (6) TMI 926 - SC - Customs

Order of acquittal passed by the Allahabad High Court of the charge under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act 1985 Held that - The alleged recovery of heroin from the respondents was made in complete violation of the provisions of Section 50 of the Act. Apart from this the non-examination of the two independent witnesses of the search and recovery was another grave omission by the prosecution. It is significant to note here that a formal petition for discharge of the two witnesses was filed by the prosecution before the trial court and it is not that they were simply not produced before the court. Therefore satisfied that the High Court took the correct view of the matter and the judgment coming under appeal does not suffer from any infirmity. Appeal dismissed. The respondents are discharged from their bail bonds.

Issues:
1. Conviction under Section 8 read with Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Acquittal by the Allahabad High Court.
3. Application of Section 50 of the Act in the case.
4. Non-examination of independent witnesses during search and recovery.

Issue 1: Conviction under Section 8 read with Section 21 of the NDPS Act:
The respondents were initially convicted by the trial court for possessing 100 grams of heroin each under Section 8 read with Section 21 of the NDPS Act, sentenced to ten years of rigorous imprisonment, and fined Rs.1 lakh each. However, the Allahabad High Court acquitted them of this charge. The recovery of heroin was made in 1994, and the law at that time imposed a minimum punishment of ten years' rigorous imprisonment and a fine of at least Rs.1 lakh for possession exceeding small quantity for personal consumption. The law was amended in 2001, making 100 grams of heroin an intermediate quantity, attracting a maximum punishment of ten years' rigorous imprisonment and a fine of up to Rs.1 lakh. The Supreme Court noted the legislative amendments and declined to interfere with the High Court's judgment, finding no infirmity in it.

Issue 2: Acquittal by the Allahabad High Court:
The Union of India appealed the High Court's judgment of acquittal. The recovery of heroin from the respondents was made in 1994, and they were acquitted by the High Court in 2002. The Court observed that the High Court acquitted the respondents based on procedural grounds, including the failure to comply with the conditions of Section 50 of the Act regarding search and the non-examination of independent witnesses during the recovery. The Court upheld the High Court's decision, emphasizing that the recovery was made in violation of Section 50, and the prosecution failed to produce crucial witnesses, leading to the acquittal.

Issue 3: Application of Section 50 of the Act:
The prosecution argued that the recovery of heroin was made from bags carried by the respondents, not their persons, and thus, Section 50 did not apply to the search. However, the Supreme Court found that the recovery was indeed from the shoulder bags carried by the respondents during a body search. Referring to precedents, the Court emphasized that even if the search of the person was conducted, the provisions of Section 50 should have been followed. The recovery in violation of Section 50 and the non-examination of independent witnesses were crucial factors leading to the acquittal.

Issue 4: Non-examination of independent witnesses during search and recovery:
The non-examination of independent witnesses during the search and recovery process was a significant omission by the prosecution. The Court noted that the witnesses were not simply absent but a formal petition for their discharge was filed. This failure, coupled with the violation of Section 50 and procedural irregularities, supported the High Court's decision to acquit the respondents. The Supreme Court found no merit in the appeals and dismissed them, discharging the respondents from their bail bonds.

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