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TMI Blog2015 (5) TMI 442X X X X Extracts X X X X X X X X Extracts X X X X ..... cifically considered and dealt with. Following earlier Constitution Bench judgment, the Court held that when search and recovery from a bag, brief case, container etc. is to be made, provisions of Section 50 of the Act are not attracted. There is no evidence that the appellant was beaten, tortured or subjected to any third degree method. The appellant has not come in the witness box to substantiate the plea taken in her application. Moreover, had she been subjected to torture and use of third degree method, she would have complained to the Magistrate at the time when she was produced before him for the first time. Besides the confessional statement of the appellant, there was ample evidence on record to prove the case of prosecution - No other point was urged during the course of the argument. That being so, the conviction of the appellant under Section 21(c) of NDPS Act as awarded by the learned Special Judge does not warrant any interference. Out of 10 years sentence awarded to the appellant she has already served more than 9 years, she is not involved in any other case as such, liberal view be taken. As regards the minimum sentence awarded to the appellant and the fine imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently one report Ex.PW3 /Q regarding execution of search warrant Ex.PW3 /N. PW-3 Sh.M.C.Maheshwari , the main Investigating Officer of the case who deposed on the lines of the prosecution story regarding apprehension of the accused from the airport, recovery of contraband substance from her baggage and various aspects connected with the investigation of the case. PW-4 Sh.R.P.Meena , Assistant Chemical Examiner, CRCL who analysed the samples and proved the test report as Ex.PW4 /B. PW-5 Sh.R.S.Kashyap with whom the case property was deposited by the Investigating Officer. PW-6 Ms.Kanwaljit Bakshi , Intelligence Officer of DRI who remained present at the time of recording of statements Ex.PW3 /F and Ex.PW3 /G under Section 67 of the NDPS Act of the accused. She also conducted personal search of the accused subsequent to her arrest. PW-7 Sh.Trilok Chand and PW-8 Sh Ashwini Kumar Gaind , independent witnesses who joined the proceedings. PW-10 Ms.Baneeta Khurana was the female member of the raiding team of the DRI and deposed regarding the apprehension of the accused, search and seizure proceedings. PW-11 Sh.Vinod Kumar, Deputy Director, DRI to whom the information Ex.PW1 /A was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Gazetted Officer or a Magistrate however, such a requirement is imperative only when person of the accused is to be searched. No notice is required to be given when the belongings are to be searched. In the instant case, the recovery was effected from the baggage carried by the appellant. That being so, no notice was required to be given to the accused yet a notice was given. Even if there is any shortcoming in the notice that does not give any right to seek acquittal on this ground. Reliance was placed on Ruiz Guerrero Dolores vs. Customs, 83 (2000) DLT 191; Narcotics Control Bureau vs. Chen Ching Sung, 2015 (1) JCC (Narcotics) 1; (ii) The mere fact that the sample seal was not given to independent witness is of no consequence in as much as the sealing system is different in the case of DRI than the one when investigation is carried out by the police officials . Moreover, the paper slip was also signed by the accused as such, there was no possibility of tampering with the case property. Reliance was placed on Siddiqua vs. NCB , 2007(1) JCC (Narcotics) 22 and Namdi Francis Nwazor vs NCB , 1994 (1) Crimes 579. (iii) As regards contradiction in the testimony of the witnesses, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect in the notice, same is inconsequential. 8. As per the prosecution case, the secret information was that the accused was carrying a bag which was containing contraband articles, that being so, the main question for consideration is whether in that eventuality provisions of Section 50 of the Act are attracted or not. In Aimer Singh v. State of Haryana, (2010) 3 SCC 746 this aspect was specifically considered and dealt with. Following earlier Constitution Bench judgment, the Court held that when search and recovery from a bag, brief case, container etc. is to be made, provisions of Section 50 of the Act are not attracted. It is so stated in the following manner: 14. The object, purpose and scope of Section 50 of the Act was the subject-matter of discussion in a number of decisions of this Court. The Constitution Bench of five Judges of this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 after exhaustive consideration of the decisions of this Court in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, (1994) 6 SCC 569 and Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345 - LB have concluded in para 57: (I) When search and seizure is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Act, because firstly, Section 50 expressly speaks of search of person only. Secondly, the section speaks of taking of the person to be searched by the gazetted officer or a Magistrate for the purpose of search. Thirdly, this issue in our considered opinion is no more res integra in view of the observations made by this Court in Madan Lal v. State of H.P ., (2003) 7 SCC 465. The Court has observed: 16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257, State of Punjab v. Baldev Singh (1999) 6 SCC 172 and Gurbax Singh v. State of Haryana (2001) 3 SCC 28. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case . Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance. 16. In State of H.P . v. Pawan Kumar, (2005) 4 SCC 350 this Court has stated: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to some independent witness. An investigating officer has to do investigation day out and day in, in several cases. It is not that after every recovery, a new seal has to be got prepared by the investigating officer and the old seal is to be discarded. The Court cannot consider some imaginary doubts as the basis of attack on a judgment. It is not the stand of the counsel for the appellant that the seal was misused by the investigating officer after sealing of the samples and the case property. No such suggestion has been given to any of the prosecution witness. The only stand is that the seal was not given to an independent witness and there was possibility of misuse. Mere possibility of a thing does not cast doubt on the prosecution case. In this case, the samples and the case property were sealed with paper slips, containing the signatures of the panch witnesses. These paper slips were found intact by the learned trial court when the case property was produced in the court. Similarly, when the samples were received by the CRCL , the seals were found intact with the paper slips. There is another factor. The samples in this case were sent to CRCL on the very next day i.e. on 26th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellant that the statement recorded under Section 67 of NDPS Act was subsequently retracted was not voluntary statement and, therefore, the same cannot be considered, again deserves rejection. This aspect of the matter was succinctly dealt with by the learned Trial Court by observing as under :- 39. The legal position with regard to a statement made by an accused U/S 67 of the NDPS Act is now that such a statement is admissible in evidence and can be acted upon if the same is found to be made voluntarily. Earlier the view of the higher courts had been that if such a statement of an accused is found to be voluntary then the same can be made the sole basis of conviction of the accused, but if the same is not voluntary then the same is only a waste paper. To find out if such a statement of the accused is voluntary or not, the court has to see and examine the circumstances under which the same was made. In the case of M.Prabhu Dayal vs. The Assistant Director, DRI , 2003 ( Suppl.2 ) SCC 459, it was held by the Hon'ble Supreme Court that even if such a statement is subsequently retracted by the accused, the same should be believed and acted upon by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inspection of the case file the above retraction of the accused had come to their knowledge. In any case, the above reply of the DRI is also to be considered by this court. 43. In the above retraction application, the accused had alleged that her earlier statements dated 27.09.2005 and 28.09.2005 taken by the DRI Officers were not her voluntary statements and no recovery was effected from her. She had also claimed that the above statements were extracted from her by pressurizing and coercing her and hence the same should not be read against her. 44. However, apart from the vague submissions made in the above retraction application regarding the exercise of any pressure or coercion etc. upon her to extract the said statements, there is nothing on record to suggest or infer the use of any force, pressure or other compulsive means by the DRI officers to force the accused to make such confessional statements. Rather, her personal details disclosed in the above statement Ex.PW3 /F by the accused in her own handwriting are suggestive of the voluntariness of the same and the above retraction of the accused is found to be belated as the same had not been made at the first instance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was awarded the minimum sentence prescribed under the said section for which even after hearing the counsel for the appellant, the learned Trial Court was not competent to award any lesser sentence. That being so, even if the judgment and the order on sentence were pronounced on the same day, no prejudice is caused to the appellant. 16. No other point was urged during the course of the argument. That being so, the conviction of the appellant under Section 21(c) of NDPS Act as awarded by the learned Special Judge does not warrant any interference. 17. Coming to the quantum of sentence, learned counsel for the appellant urged that out of 10 years sentence awarded to the appellant she has already served more than 9 years, she is not involved in any other case as such, liberal view be taken. As regards the minimum sentence awarded to the appellant and the fine imposed upon her, the same is the minimum sentence prescribed under that section. There is no enabling provision to Court for reduction of sentence by giving special or adequate reasons. Hence, plea as to reduction of sentence would not be tenable. As per the nominal roll dated 22.04.2015, the appellant has already served ..... 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