2015 (5) TMI 442 - HC - Customs

Conviction for offence under Section 21(c) of NDPS Act, 1985 - non-compliance of provisions of Section 50 of NDPS - Held that - Wherever giving of notice under Section 50 of NDPS Act is mandatory, it is incumbent upon the Investigating Officer of the case to inform the suspect that he has legal right to be searched before a Gazetted Officer or a Magistrate but it was submitted that since in the instant case the secret information was regarding carrying of contraband articles in the baggage therefore since the person of the accused was not required to be searched therefore compliance of Section 50 of the Act was not mandatory. That being so, even if there is any defect in the notice, same is inconsequential. - As per the prosecution case, the secret information was that the accused was carrying a bag which was containing contraband articles, that being so, the main question for consideration is whether in that eventuality provisions of Section 50 of the Act are attracted or not. In Aimer Singh v. State of Haryana, 2010 (2) TMI 1051 - SUPREME COURT this aspect was specifically considered and dealt with. Following earlier Constitution Bench judgment, the Court held that when search and recovery from a bag, brief case, container etc. is to be made, provisions of Section 50 of the Act are not attracted. There is no evidence that the appellant was beaten, tortured or subjected to any third degree method. The appellant has not come in the witness box to substantiate the plea taken in her application. Moreover, had she been subjected to torture and use of third degree method, she would have complained to the Magistrate at the time when she was produced before him for the first time. Besides the confessional statement of the appellant, there was ample evidence on record to prove the case of prosecution - No other point was urged during the course of the argument. That being so, the conviction of the appellant under Section 21(c) of NDPS Act as awarded by the learned Special Judge does not warrant any interference. Out of 10 years sentence awarded to the appellant she has already served more than 9 years, she is not involved in any other case as such, liberal view be taken. As regards the minimum sentence awarded to the appellant and the fine imposed upon her, the same is the minimum sentence prescribed under that section. There is no enabling provision to Court for reduction of sentence by giving special or adequate reasons. Hence, plea as to reduction of sentence would not be tenable. As per the nominal roll dated 22.04.2015, the appellant has already served a sentence of 9 years 6 months 24 days leaving behind the unexpired portion of sentence of 5 months and 6 days. No previous involvement has been reported, her conduct has been reported to be satisfactory. Under the circumstances, while maintaining the quantum of fine of ₹ 1 lac, the default sentence of six months is reduced to one month simple imprisonment. - Decided partly in favour of appellant.

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Handing over of the seal to independent witnesses.
3. Contradictions in the testimony of prosecution witnesses.
4. Voluntariness of the statement under Section 67 of the NDPS Act.
5. Pronouncement of judgment and sentence on the same day.

Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The appellant argued that the notice under Section 50 of the NDPS Act was defective, as it did not inform her of her legal right to be searched before a Gazetted Officer or a Magistrate. The prosecution contended that Section 50 applies only to personal searches and not to searches of belongings. The court referred to the case of *Aimer Singh v. State of Haryana* and other precedents, concluding that Section 50 does not apply to searches of bags or containers. Therefore, the alleged defect in the notice was inconsequential, and the appellant's argument on this ground was rejected.

2. Handing over of the seal to independent witnesses:
The appellant claimed that the prosecution's case was doubtful because the seal used during the search was not handed over to independent witnesses. The court dismissed this argument, citing *Siddiqua vs. NCB* and *Namdi Francis Nwazor vs. NCB*, which clarified that there is no statutory requirement to hand over the seal to independent witnesses. The court found no evidence of tampering with the case property, as the seals were found intact when the samples were received by the CRCL and produced in court.

3. Contradictions in the testimony of prosecution witnesses:
The appellant argued that contradictions in the prosecution witnesses' testimonies created doubt about the prosecution's story. The court held that minor discrepancies are inevitable and do not materially affect the prosecution's case. The testimonies of the witnesses were consistent on material aspects, and the presence of two independent witnesses who supported the prosecution further strengthened the case.

4. Voluntariness of the statement under Section 67 of the NDPS Act:
The appellant retracted her statement under Section 67, claiming it was not voluntary. The court noted that the trial court had already addressed this issue, finding no evidence of coercion or torture. The appellant's retraction was deemed belated and unsupported by evidence. The court upheld the trial court's finding that the statement was voluntary and corroborated by other evidence.

5. Pronouncement of judgment and sentence on the same day:
The appellant argued that pronouncing the judgment and sentence on the same day vitiated the trial. The court distinguished this case from *Matloob vs. State (Delhi Administration)*, noting that the appellant received the minimum sentence prescribed under the NDPS Act. Since the trial court had no discretion to award a lesser sentence, no prejudice was caused to the appellant.

Conclusion:
The court found no merit in the appellant's arguments and upheld the conviction under Section 21(c) of the NDPS Act. However, considering the appellant's conduct and the time already served, the court reduced the default sentence for non-payment of the fine from six months to one month of simple imprisonment. The appeal was dismissed with this modification.

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