2017 (12) TMI 1511 - HC - Indian Laws

Non compliance of provisions of Section 50(1) of the Act - seizure of contraband item - ganja/psychotropic addictive substance - Held that - On plain reading of Section 50 of the Act, it appears that the safeguard or protection to be searched in presence of Magistrate or Gazetted Officer has been incorporated in Section 50 of the Act, to ensure that persons are only searched with a good cause. So far Section 50 of the Act, is concerned, it appears to be mandatory in nature when the search of a person of a suspect is required but the same does not appear to be applicable in a case where the recovery is from dickey or bag etc. - In the present case recovery of contraband is from the dickey of the car, however, person of the appellant has also been searched and as such submission of learned counsel for the appellant that in the above circumstance non compliance of provision of Section 50 of the Act vitiate the conviction of the appellant as though a Circle Officer was present there and there is nothing available on record to show that they have informed the accused person about his statutory right to be searched before a Magistrate or Gazetted Officer. Facts of the case in hand is also similar to that decided by Hon ble Apex Court in the case of Dilbag Singh v. State of Punjab 2016 (12) TMI 1 - SUPREME COURT as in this case also recovery is from the car and not from the possession of the appellant and though person of the appellant was also searched but nothing except one mobile and some sim cards were recovered and as stated above, prosecution is also not relying upon the personal seizure of the appellant. The contention of appellant regarding non-compliance of Section 50(1) does not appear to be convincing and is certainly of no help, whereas, there are sufficient cogent, consistent and reliable materials available on record with regard to recovery of commercial quantity of ganja/psychotropic addictive substance from the dickey of the car - So far conviction of appellant under Section 476 of Indian Penal Code is concerned, the same appears to be not sustainable and is hereby set aside - appeal disposed off.

Summary

Issues Involved:
1. Non-compliance with Section 50(1) of the NDPS Act.
2. Validity of the search and seizure operation.
3. Reliability of witness testimonies.
4. Conviction under Section 476 of the Indian Penal Code.

Detailed Analysis:

Non-compliance with Section 50(1) of the NDPS Act:
The appellant's primary contention was the non-compliance with Section 50(1) of the NDPS Act, which mandates that a person being searched must be informed of their right to be searched in the presence of a Gazetted Officer or Magistrate. The prosecution argued that since the contraband was found in the vehicle's dickey and not on the appellant's person, Section 50(1) was not applicable. The court examined precedents, including State of Punjab v. Baldev Singh and State of Rajasthan v. Parmanand, and concluded that while Section 50(1) is mandatory for personal searches, it does not apply to searches of vehicles or other containers. The court found substantial compliance with Section 50(1) since the Circle Officer was present during the search.

Validity of the Search and Seizure Operation:
The search and seizure operation was conducted based on prior information. The vehicle was intercepted, and 96 kilograms of ganja were found in the dickey. The appellant was apprehended while trying to flee. The court noted that the search was conducted in the presence of a Magistrate (P.W. 5), and all procedural formalities were followed, including the preparation of a seizure memo signed by witnesses and the appellant. The samples were properly sealed and sent to forensic laboratories, confirming the substance as ganja.

Reliability of Witness Testimonies:
Six witnesses were examined, including police officers and the Circle Officer. P.W. 3 (the informant) and P.W. 5 (the Circle Officer) provided consistent testimonies about the interception of the vehicle and the recovery of ganja. Although P.W. 2 (a seizure list witness) was declared hostile, he admitted the recovery of ganja from the vehicle. The court found the testimonies of P.W. 1, P.W. 3, P.W. 4, P.W. 5, and P.W. 6 credible and consistent, supporting the prosecution's case.

Conviction under Section 476 of the Indian Penal Code:
The appellant was also convicted under Section 476 of the IPC for possessing four different number plates. The court found no evidence that these number plates were verified or used by the appellant. The trial court's conviction under Section 476 was deemed mechanical and unsustainable. Consequently, the court set aside the conviction under Section 476.

Conclusion:
The court upheld the appellant's conviction under Sections 20(b)(ii)(C) and 22(C) of the NDPS Act, affirming the rigorous imprisonment and fine. However, the conviction under Section 476 of the IPC was set aside due to a lack of evidence. The appeal was disposed of accordingly.