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TMI Blog2013 (10) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of some Gazetted officer or a Magistrate. 5. After recording the statement of the appellant and after getting his signature attested by A.S.I Balbir Singh and A.S.I Massa Singh, P.W.6 claimed to have flashed a wireless message whereupon Baldev Singh, DSP, Sunam, who was examined as P.W.3, reached the spot. P.W.6 stated to have searched the gunny bags lying in the tractor trolley in which poppy husk was recovered. P.W.6 claimed to have drawn two samples of 250 gms from each of the gunny bag. The remaining poppy husk, which weighed to the extent of 34 kg in each of the gunny bag, was stated to have been separately sealed, while the six sample parcels were also sealed separately with the impression DS . P.W.6 also claimed to have prepared a sample seal chit separately. Tractor trolley and the case properties were taken into possession by P.W.6 through a recovery memo attested by P.W.3 as well as by A.S.I Balbir Singh and A.S.I. Massa Singh. The appellant was stated to have been arrested, and the arrest memo along with Rukka, was sent to the police station through C. Harjinder Singh, based on which an FIR was recorded by A.S.I Sukhdev Singh. After preparing the rough si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, unfortunately, the High Court by simply extracting the concluding part of the judgment of the trial Court chose to confirm the conviction and sentence. The appellant has, therefore, come forward with this appeal. 9. We heard Mr. S.S. Ray, learned counsel for the appellant as well as Mr. Sanchar Anand, learned Additional Advocate General for the respondent. The learned counsel for the appellant mainly contended that there was non-compliance of Section 50 in the matter of search alleged to have been made on the appellant and the tractor; that the contention of the appellant about the status of P.W.3 that he was not a Gazetted officer on the date of the alleged search was not considered by the Courts below and that none of the defence witnesses were properly appreciated by the trial Court as well as by the High Court. The learned counsel, therefore, contended that the conviction and sentence imposed on the appellant cannot be sustained. 10. Reliance was placed upon the decisions in State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172, State of H.P. vs. Pawan Kumar reported in (2005) 4 SCC 350 in support of his submissions. 11. Learned Additional Advocate Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cr.P.C. and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, the question of invoking Section 50 would not arise. When that principle is examined carefully one can easily understand that without any prior information as to possession of any narcotic drug and psychotropic substance, a police officer might have held a search in the course of discharge of his duties as contemplated under the provisions of Cr.P.C and, therefore, it would well neigh impossible to state that even under such a situation, the application of Section 50 would get attracted. In fact, if we examine the facts involved in Balbir Singh (supra), as per the contention of learned counsel for the State, in that decision the police officer effected the arrest, search and seizure on reasonable suspicion that a cognizable offence was committed and not based on any prior information that any offence punishable under NDPS Act was committed and, therefore, it was argued that complying with the provisions of the NDPS Act at the time of the said arrest, search and seizure did not arise in as much as such arrest, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the High Court in our considered opinion would not have arisen. The distinct feature in the case on hand was that on the date of occurrence i.e. on 04.04.1996 at 00.15 AM, the police party headed by P.W.6, accosted a tractor trolley coming from the side of village Ugrahan, which was stopped by him and that when the driver after stopping the tractor tried to escape was apprehended by the police team. The most crucial aspect of the case was that P.W.6 noticed three gunny bags lying in the tractor of the appellant and felt that some incriminating substance was kept in those gunny bags. P.W.6, therefore, took the view that before effecting search of the gunny bags, the necessity of affording an opportunity to the appellant to conduct the search in the presence of a Gazetted officer or a Magistrate was imperative. In other words, 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaching any conclusion about the commission of the alleged offence. 21. In the Constitution Bench decision of this Court in Baldev Singh (supra), the importance of due compliance of Section 50 has been mainly set out in paragraphs 28, 32 and 33 which are as under: 28 The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. 32. However, the question whether the provisions of Section 50 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. In Pawan Kumar (supra) wherein the Constitution Bench decision was referred to and was reiterated as under in paragraph 26: 26. ..Otherwise, there would be no distinction between recovery of illicit drugs, etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used a very strict view of Section 50 of the Act was taken and it was held that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50 may render the recovery of the contraband suspect and sentence of an accused bad and unsustainable in law. As a corollary, there is no warrant or justification for giving an extended meaning to the word person occurring in the same provision so as to include even some bag, article or container or some other baggage being carried by him. 23. The aforesaid observations of the above Constitution Bench decision in Baldev Singh (supra) and the three Judge Bench decision in Pawan Kumar (supra), clearly highlight the legal requirement of compliance of Section 50 in its tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . at that point of time, was summoned and in whose presence the search and seizure was stated to have been made, the trial Court failed to appreciate whether such a search or seizure was really held in accordance with Sections 42 and 50 of the NDPS Act. 25. One of the grounds raised on behalf of the appellant was that P.W.3 was not holding the post of D.S.P. in a substantive manner in order to hold that he was a Gazetted officer on the date of search. According to the appellant, P.W.3 was not a regularly promoted D.S.P. but was only an Inspector functioning as a D.S.P. in a category called Own Rank Pay D.S.P. According to the appellant, P.W.3 was drawing the pay of an Inspector from I.R.D. and was not holding the post of D.S.P. on a regular basis. It was, therefore, contended that such a person who was not duly promoted as D.S.P., cannot be equated to the status of a Gazetted officer in order to hold that a search conducted in his presence was a valid search as contemplated under Section 50 of the NDPS Act. As far as the said point raised on behalf of the appellant, we do not find any material or a counter-stand taken to the effect that P.W.3 was a regularly promoted D.S.P. or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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