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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 ..... ormalities, the representative samples of the contraband were sent for chemical analysis, which on analysis, were found to be heroin. Prosecution relied upon the evidence of PW-1 Madan Kumar, Intelligence Officer who received the information and reduced the same into writing as Ex.PW1 /A, PW-2 Sh.B.K.Banerjee , Appraiser in DRI who issued the seal of DRI to the Investigating Officer on 27.09.2005 and received the seal back on the same day. He also received the report under Section 57 of NDPS Act Ex.PW2 /A from the complainant. He also sent the sample parcels to CRCL vide forwarding letter Ex.PW2 /D and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity as such, it has no evidentiary value to base the conviction of the appellant; (v) The judgment and the order of sentence were pronounced on the same day as such, the same stands vitiated. Reliance was placed on Matloob vs. State (Delhi Administration), 1997 IV AD Delhi 178. 4. Rebutting the submissions of learned counsel for the appellant, learned counsel for DRI submitted: (i) It was not disputed that the provisions of Section 50 of NDPS Act are mandatory and mere giving option to the accused is not sufficient. He has to be informed of his right that he can be searched by 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 Chin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the respondent that wherever giving of notice under Section 50 of NDPS Act is mandatory, it is incumbent upon the Investigating Officer of the case to inform the suspect that he has legal right to be searched before a Gazetted Officer or a Magistrate but it was submitted that since in the instant case the secret information was regarding carrying of contraband articles in the baggage therefore since the person of the accused was not required to be searched therefore compliance of Section 50 of the Act was not mandatory. That being so, even if there is any defect 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the bag, briefcase, etc. carried by the person and its non-compliance would be fatal to the proceedings initiated under the Act. We find no merit in the contention of the learned Counsel. It requires to be noticed that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where search of a person is involved and the said section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS 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 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation to the facts of the case in hand. 10. As regards the next limb of argument that the seal after use was not handed over to independent witnesses despite their presence at the time of search and seizure, the same therefore cast doubt on the prosecution story , the same deserves rejection . Similar plea was taken in Siddiqua vs. NCB, 2007 (1) JCC (Narcotics) 22 and it was observed as under :- "....It has to be noted that there was no provision under the NDPS Act for handing over of the seal by the Investigating officer after use 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 possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crepancies are bound to occur in the testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there are minor discrepancies or contradictions. Perusal of the testimony of the relevant witnesses goes to show that on the material aspect all the witnesses have corroborated the testimony of each other. It is one of those rare cases where two independent witnesses were also joined during the proceedings and even these witnesses have supported the prosecution. 13. The other submissions of 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be read together and in continuity. 42. One hand written retraction application/statement of the accused (undated) was also received in this court through the Jail Superintendent concerned on 07.10.2005 and after the same was seen by the court , it was directed to be placed on record. However, there is nothing on record to show that any copy thereof was supplied to Ld SPP for DRI for filing any reply to the same and the reply of the DRI to the above retraction application was only filed on 06.07.2011, when during an 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant was convicted for offence under Section 20 of NDPS Act the minimum sentence prescribed was 10 years and fine of Rs . 1 lac which could have extended upto 20 years and fine of Rs. 2 lacs . The Trial Court awarded the sentence of 12 years rigorous imprisonment and fine of Rs. 1.5 lacs on the same day when the judgment was pronounced. The judgment was set aside on various counts including the fact that the conviction and sentence was on the same day. However, in the instant case the appellant 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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