Law Web: Whether recovery of Ganja from bag of accused will be vitiated if investigating officer has violated S 50 of NDPS Act?

Learned counsel submits that the option given to

the appellant to take a third choice other than what

is prescribed as the two choices under sub-Section (1)

of Section 50 of the Act is something which goes

contrary to the mandate of the law and in a way

affects the protection provided by the said Section to

the accused. To support his contention, he has relied

upon the judgment of State of Rajasthan v. Parmanand &

Anr. – (2014) 5 SCC 345, more specifically, para 19.

The judgment in turn, relied upon a Constitution Bench

judgment of this Court in State of Punjab v. Baldev

Singh – 1999 (6) SCC 172 to conclude that if a search

is made by an empowered Officer on prior information

without informing the person of his right that he has

to be taken before a Gazetted Officer or a Magistrate

for search and in case he so opts, failure to take his

search accordingly would render the recovery of the

illicit article suspicious and vitiate the conviction

and sentence of the accused where the conviction has

been recorded only the on basis of possession of

illicit articles recovered from his person. The third

option stated to be given to the accused to get

himself searched from the Officer concerned not being

part of the statute, the same could not have been

offered to the appellant and thus, the recovery from

him is vitiated.

In the conspectus of the facts of the case, we

find the recovery was in a polythene bag which was

being carried on a Kanwad. The recovery was not in

person. Learned counsel seeks to expand the scope of

the observations made by seeking to contend that if the

personal search is vitiated by violation of Section 50

of the NDPS Act, the recovery made otherwise also would

stand vitiated and thus, cannot be relied upon. We

cannot give such an extended view as is sought to be

contended by learned counsel for the appellant.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.130 /2022

DAYALU KASHYAP Vs THE STATE OF CHHATTISGARH

Dated: JANUARY 25, 2022.

Leave granted.

The present appeal arises qua an incident of

11.09.2010 of 10.30 in the morning when Sub Inspector

K.S.Singh (PW-5), on the basis of the information

received, apprehended the appellant and found that he

was carrying Ganja in a green polythene bag on a wooden

Kanwad from Bhaisabeda to Pithapur for transportation.

The appellant was charged under the Narcotics Drugs and

Psychotropic Substances Act, 1985 (‘NDPS Act’) and

tried by the Special Judge who convicted the appellant

under Section 20(b)(ii)(c) of the NDPS Act and

sentenced him to undergo rigorous imprisonment for 10

years and to pay a fine of Rs.1 lakh. The appellant

preferred an appeal before the High Court of

Chhattisgarh but that appeal was dismissed by the

impugned order dated 28.03.2019.

We issued notice on 01.02.2021 including on the

bail application as the appellant had undergone

sentence of 10 years and his inability to pay fine was

resulting in him serving out the remaining sentence of

one year. In the course of hearing this matter with

some other matter, on 01.03.2021, we noticed that the

only point which really arose for consideration was

from the effect of provisions of Section 50 of the NDPS

Act. Since the petitioner had already undergone 10

years of sentence and served about six months in the

alternative sentence of one year for non-payment of

fine, we considered appropriate to substitute the

sentence of one year against non-payment of fine by the

sentence of about six months and directed the appellant

to be set free. The appellant was accordingly set free

on 03.03.2021.

We have heard learned counsel for the appellant

on the aforesaid question posed by him. Learned

counsel has drawn our attention to the testimony of the

Officer (PW-5) carrying out the search. Para 6 of the

testimony reads as under:

“6. Thereafter, on the spot, at the

side of Pithapur Thothapada Chowk,

Murumroad, the accused was served notice u/s

50 of the NDPS Act at 12.45 O’Clock that the

information has been received from the

informer that the Ganja is kept at both ends

of his Kanwad for which it is necessary to

conduct search. You can get the search

conducted from any Gazetted Officer,

Magistrate or even by me. The accused was

explained about the meaning of Gazetted

Officer and Magistrate. Then, the accused

gave verbal consent to get the search

conducted by me. The consent given for

search was recorded as dictated by the

accused. The notice served by me is Exhibit

P.5 which bears my signature at part C to C.

On the same date at 13 O’ clock, at the spot

itself, on getting the consent from the

accused, I got myself, accompanying staff

and motorcycle searched from the accused. No

objectionable article was found in the

search. Our personal search is Search Memo

(Exhibit P.6) which bears my signature at

part C to C. At 13:15 O’clock, at the spot,

the green coloured polythese bundle wrapped

at both ends of Kanwad kept in the

possession of accused and accused Dayalu

Kashyap were searched. Then, the article

similar to Ganja were found inside both the

polythene bundles. Search Memo is Exhibit

P.7 which bears my signature at part C to

C.”