2004 (8) TMI 729 - SC - Indian Laws

Summary

Issues Involved:
1. Conviction under Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Conviction under Section 307 IPC.
3. Compliance with mandatory provisions of Sections 41, 42, and 50 of the NDPS Act.
4. Validity of the recovery process and evidence handling.
5. Applicability of Section 50 of the NDPS Act.
6. Incorrect citation of the section under the NDPS Act.

Issue-wise Detailed Analysis:

1. Conviction under Section 22 of the NDPS Act:
The appellants were convicted under Section 22 of the NDPS Act and sentenced to ten years of imprisonment and a fine of Rs. 1 lakh. The trial court found the recovery of heroin from the accused persons to be proved beyond reasonable doubt and invoked the presumption under Section 54 of the Act. The High Court upheld this conviction, finding the prosecution case fully established by the testimonies of PW 1 and PW 2, and other witnesses, without any legal flaws that could vitiate the trial.

2. Conviction under Section 307 IPC:
The appellant in Criminal Appeal No. 1144 of 2003 was also convicted under Section 307 IPC for firing at the police party and sentenced to four years of imprisonment and a fine of Rs. 2000. However, the evidence provided by PWs 1 and 2 was deemed vague and insufficient to safely convict him under this charge. The court noted the lack of definitive evidence regarding the direction of the shot and the logistics involved. Consequently, the appellant was acquitted of the charge under Section 307 IPC.

3. Compliance with Mandatory Provisions of Sections 41, 42, and 50 of the NDPS Act:
The trial court held that there was no violation of the mandatory provisions of Sections 41, 42, and 50 of the NDPS Act. The High Court concurred, stating that the prosecution case was corroborated by the evidence without any legal flaws. The Supreme Court also found no substance in the contention regarding the violation of Section 50, even assuming that the search of the jhola involved the search of a person.

4. Validity of the Recovery Process and Evidence Handling:
The appellants contended that there was doubt regarding the recovery of heroin as the same was not produced before the court, and there was no evidence on how the seized packets were transferred to the Customs Division. However, these points were not raised in the trial court or the High Court, nor were they included in the memorandum of SLP. The Supreme Court declined to consider these factual aspects for the first time in the appeal under Article 136 of the Constitution.

5. Applicability of Section 50 of the NDPS Act:
The appellants argued that Section 50 was violated as the search was conducted without adhering to the conditions laid down in the section. The court clarified that Section 50 would come into play only in the case of a search of a person, and not when the search is conducted based on general information about smuggling. The court referred to the legal position established in State Of Punjab v. Balbir Singh and State Of Punjab v. Baldev Singh, emphasizing that Section 50 requirements are not attracted in cases of chance recovery during the normal course of investigation.

6. Incorrect Citation of the Section under the NDPS Act:
The appellants contended that the conviction under Section 22 was illegal as the substance in question was not a psychotropic substance. The court noted that the seized substance was a "manufactured drug" containing "diacetyl morphine," thus falling under Section 21 of the Act. The punishments under Sections 21 and 22 are the same, and the citation of the wrong section did not prejudice the appellants or affect their ability to defend themselves.

Judgment:
Criminal Appeal No. 1143 of 2003 was dismissed. Criminal Appeal No. 1144 of 2003 was allowed to the extent of setting aside the conviction under Section 307 IPC. The conviction under Section 22 of the NDPS Act was altered to one under Section 21 of the Act, with the sentence remaining the same.