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TMI Blog2014 (1) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... overy pursuant to the said notice cannot be said to be legal - Decided in favour of assessee. - Crl. Appeal No.663/2010 - - - Dated:- 8-1-2014 - MR. V.K. JAIN, J. For the Appellant : Ms. Charu Verma, Adv. For the Respondent : Mr. Satish Verma, APP JUGEMENT MR. V.K. JAIN JUDGMENT V.K.JAIN, J. (Oral) The case of the prosecution in nutshell is that on 21.9.2007, when the police officials were present at bus stand Punjabi Bagh, checking buses passing from there, the appellant before this Court got down from the bus. At that time he was carrying a box on his shoulders. An informer who was present on the spot, informed Inspector Ishwar Singh, one of the police officials referred above, that the appellant was going to supply ganja in the jhuggies and the box being carried by him contained ganja. On search of the trunk being carried by the appellant, 21 kg of ganja is alleged to have been recovered. This is also the case of the prosecution that before searching the trunk being carried by the appellant, a notice under Section 50 of NDPS Act was given to the appellant, who stated that he did not want the evidence to be created against him by calling the Magistrate or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subzi Mandi, Janakpuri, Delhi, apko is notice ke tehat suchit kiay jata hai ki hamare pas itla hai ki apko kabje me smack hai aur apki talashi amal mein laye jati hai. Agar ap chahen to apki talashi ke liye kisi Gazetted Officer ya Magistrate ka probandh kiya ja sakta hai. The High Court, relying upon the decision of the Apex Court in State of Punjab versus Baldev Singh [(1994) 3 SCC 299], held that the aforesaid intimation did not specify the provisions of Section 50 of the Act. It was held that the intimation given to the respondent could not be treated as communicating to him that he had a right under law to be search before the aforesaid authorities and since the recovery itself as illegal, the conviction and sentence had to be set aside. Being aggrieved from the order of this Court, an appeal was preferred by the State. Rejecting the appeal, the Apex Court, inter alia, held as under: The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e illegal, that means the accused did not actually possess the illicit article or contraband and that no such illicit article was recovered from the possession of the accused such as to enable such conviction of a contraband article. Obviously, the legislative intent is that compliance with these provisions is imperative and not merely substantial compliance. Even in the case of Ali Mustaffa Abdul Rahman Moosa (supra), this Court clearly stated that contraband seized as a result of search made in contravention to Section 50 of the Act, cannot be used to fasten the liability of unlawful possession of contraband on the person from whom the contraband had allegedly been seized in an illegal manner. `Unlawful possession' of the contraband is the sine qua non for conviction under the Act. Once the recovery itself is made in an illegal manner, its character cannot be changed, so as to be admissible, on the strength of statement of witnesses. What cannot be done directly cannot be permitted to be done indirectly. If Ex.PW-6/A is not in conformity with the provisions of Section 50 of the Act, then there is patent violation of the provisions. Firstly, in the present case, there is no pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Trial Court, the appellant approached the Apex Court. It was held by the Apex Court that reliance upon Baldev Singh (supra) was wholly misplaced since the principle laid down in the said case postulates a situation where a police officer in the normal course of investigation of an offence or suspected offences as provided under the provisions of Code of Criminal Procedure 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. It was observed that in the absence of 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 Code of Criminal Procedure and, therefore, it would be impossible to state that even under such a situation, the application of Section 50 would get attracted. The Apex Court noted that PW-6 having noticed that the three gunny bags lying in the tractor of the appellant took the view that before effecting search of gunny bags the necessity of affordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y by the Courts dealing with the trial of such offences brought before it. Noticing that there was no material to show that PW-3 was a regularly promoted DSP or that as per rules he could be equated to any other DSP, the Apex Court set aside the judgment of the Trial Court and High Court and acquitted the appellant. 9. In Mantoon Kumar vs. State Crl.A. No.174/2005 decided on 03.12.2013, the appellant before this Court was apprehended while carrying a bag in his right hand and on checking of the said bag 1 kg and 600 grams of ganja was alleged to have been recovered. The notice served upon the appellant in that case read as under: You, Mantoon Kumar s/o. Chaturi Mandal r/o. Village Chuck, P.S. Chothan Distt. Khagaria Bihar, presently residing at Priya Darshni Jhuggi Colony, S.Bazar is hereby informed vide this notice that that police has an information that you are in possession of ganja (poppy husk) and a personal search has to be carried out on you and if you desire any gazetted officer or a Magistrate can be called on the spot, and before getting searched by police party, if you desire, you may search the police party. The contention raised by the appellant before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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