2022 (1) TMI 1400 - SC - Indian Laws

Smuggling - Ganja - Section 50 of the NDPS Act - conviction u/s 20(b)(ii)(c) of the NDPS Act and - sentence to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh - HELD THAT - The recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned Counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. Appeal dismissed.

Summary

Issues:
1. Interpretation of Section 50 of the NDPS Act regarding search procedures and consent.
2. Validity of recovery of illicit substance based on search conducted under Section 50.
3. Impact of violation of Section 50 on the conviction and sentence of the accused.

Interpretation of Section 50 of the NDPS Act regarding search procedures and consent:
The case involved an appeal arising from an incident where the Appellant was apprehended carrying Ganja. The Appellant was charged under the NDPS Act and convicted by the Special Judge. The Appellant appealed to the High Court, which was dismissed. The Supreme Court considered the matter and focused on the effect of provisions of Section 50 of the NDPS Act. The Court noted that the Appellant had already served 10 years of sentence and directed his release after substituting the remaining sentence with a shorter term due to non-payment of fine. The Appellant was set free accordingly.

Validity of recovery of illicit substance based on search conducted under Section 50:
The Appellant's counsel argued that the search conducted, offering a third choice beyond what is prescribed in Section 50, was contrary to the law and affected the protection provided to the Accused. Citing relevant case law, the counsel contended that failure to inform the person of their right to be taken before a Gazetted Officer or Magistrate for search, and offering a different option, could render the recovery suspicious and vitiate the conviction. The Court noted that the recovery was from a polythene bag on a Kanwad and not from the person directly. The counsel sought to extend the argument to invalidate the recovery based on the search violation, but the Court did not accept this extended view.

Impact of violation of Section 50 on the conviction and sentence of the accused:
The Court, considering the facts of the case, found that the recovery was not directly from the person but from a polythene bag. The Appellant's counsel's attempt to invalidate the recovery based on the search violation was not accepted by the Court. The Court concluded that the recovery could not be vitiated solely based on the violation of Section 50. As this was the main aspect for consideration, the Court dismissed the appeal, leaving the parties to bear their own costs.

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