2013 (10) TMI 1204 - SC - Customs

Offence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Rights of the accused - an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate - Necessity to comply with Section 50 of the NDPS Act - Quantification of punishment - Trial Court relied on the case of State of Punjab vs. Baldev Singh 1999 (7) TMI 630 - SUPREME COURT - Held that - after noticing three gunny bags, P.W.6, as an investigating officer, felt the need to invoke the provisions of Section 50 and thereby provide an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate. When once P.W.6 could assimilate the said legal requirement as stipulated under Section 50 of the NDPS Act, we fail to understand as to how principle No.1 in paragraph 25 of the decision reported in Balbir Singh (supra) could be applied. Unfortunately, the trial Court failed to understand the said principle set out in Balbir Singh (supra) in the proper perspective while holding that neither Section 42 nor Section 50 was attracted to the facts of this case. The conclusion of the trial Court in having held that Sections 42 and 50 were not applicable to the case on hand was a total misunderstanding of the legal provisions in the light of the facts placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified. All that the trial Court did was to hold that the version of the prosecution witnesses cannot be discarded merely because they were police officers and that the evidence of P.W.3 was sufficient to support the search and recovery of the narcotic substance from the appellant. The trial Court also held that the version of the defence witnesses was not worth mentioning. It will be highly dangerous to simply affirm the ultimate conclusion of the trial Court in having convicted the appellant and the sentence imposed based on such conviction, as the same was without any ratiocination. It was most unfortunate that the High Court failed to independently examine the correctness of the findings recorded by the trial Court by simply extracting a portion of the judgment of the trial Court, while affirming the conviction - Judgment of the trial Court and the confirmation of the same by the High Court cannot be sustained - Decided in favour of assessee.

Issues Involved:
1. Compliance with Sections 42 and 50 of the NDPS Act.
2. Validity of search conducted by a non-substantive Gazetted officer.
3. Evaluation of evidence and defense witnesses.
4. Appellate Court's duty to reappraise evidence.

Detailed Analysis:

1. Compliance with Sections 42 and 50 of the NDPS Act:
The appellant argued that there was a clear violation of Sections 42 and 50 of the NDPS Act, as the search was not conducted in the presence of a Gazetted officer or a Magistrate. The trial court held that compliance with Section 50 was unnecessary, relying on the Supreme Court judgment in *State of Punjab vs. Balbir Singh* (1994) 3 SCC 299. However, the Supreme Court found this reliance inappropriate, stating that the trial court misunderstood the principle set out in *Balbir Singh*. The Supreme Court emphasized that Section 50 is mandatory and must be complied with, as it provides an imperative safeguard for the accused. The prosecution's own evidence indicated that the investigating officer, P.W.6, felt the need to invoke Section 50 and offered the appellant the option to have the search conducted in the presence of a Gazetted officer or a Magistrate. This step was pursued, and P.W.3, a DSP, was summoned for the search. The Supreme Court concluded that the trial court's finding that Sections 42 and 50 were not applicable was a total misreading of the provisions and the decision relied upon.

2. Validity of search conducted by a non-substantive Gazetted officer:
The appellant contended that P.W.3 was not a regularly promoted DSP but an Inspector acting as a DSP under the 'Own Rank Pay' (ORP) category, and therefore, not a Gazetted officer. The trial court did not address this contention, having concluded that Sections 42 and 50 were not applicable. The Supreme Court found no evidence or counter-stand from the prosecution to prove that P.W.3 was a regularly promoted DSP or that an ORP DSP could be equated to a substantive DSP. The Supreme Court held that without such evidence, it was dangerous to affirm the trial court's conviction based on the search conducted by P.W.3.

3. Evaluation of evidence and defense witnesses:
The trial court dismissed the defense witnesses' testimony, stating that the prosecution witnesses' evidence could not be discarded merely because they were police officers. The Supreme Court criticized this approach, noting that the trial court failed to appreciate whether the search and seizure were conducted in accordance with Sections 42 and 50. The Supreme Court emphasized that the compliance with Section 50 should not be an empty formality and must serve the purpose of ensuring a bona fide effort by the prosecution and protecting the accused's rights.

4. Appellate Court's duty to reappraise evidence:
The Supreme Court found that the High Court failed to independently reappraise the entire material and record conclusions supported by cogent reasons. The High Court merely extracted a portion of the trial court's judgment and affirmed the conviction without exercising its jurisdiction properly. The Supreme Court highlighted the importance of the appellate court's duty to thoroughly review the evidence and the trial court's findings.

Conclusion:
The Supreme Court allowed the appeal, setting aside the conviction and sentence imposed on the appellant. The court ordered the appellant to be set at liberty forthwith if not required in any other case, emphasizing the necessity of strict compliance with Sections 42 and 50 of the NDPS Act and the proper evaluation of evidence and defense arguments by the trial and appellate courts.

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