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Saturday, May 25, 2013

sub-section (1) of Section 50 of the NDPS Act NOT APPLICABLE IN SEARCH OF BAGS ETC., = But, a significant one, in the case at hand 32 bags of poppy straw powder weighing 64 Kgs. had been seized from two bags. It has not been seized from the person of the accused-appellant. It has been established by adducing cogent and reliable evidence that the bags belonged to the appellant. “Thus, applying the interpretation of the word “search of person” as laid down by this Court in the decision mentioned above, to facts of present case, it is clear that the compliance with Section 50 of the Act is not required. Therefore, the search conducted by the investigating officer and the evidence collected thereby, is not illegal. Consequently, we do not find any merit in the contention of the learned counsel of the appellant as regards the non-compliance with Section 50 of the Act.”


Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1327 of 2010
Ram Swaroop ... Appellant
Versus
State (Govt. NCT) of Delhi
...Respondent
J U D G M E N T
Dipak Misra, J.
The appellant herein has been found guilty of the
offence under Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short “the NDPS
Act”) and sentenced to undergo rigorous imprisonment for
a period of ten years and to pay a fine of rupees one lakh
and, in default of payment of fine, to suffer simple
imprisonment for two years.Page 2
2. On 22.7.2005, Ritesh Kumar, a Sub-Inspector, while
patrolling reached at the outer gate of ISBT where
Constable Balwant Singh met him and both of them
found the accused-appellant sitting on two white
coloured bags on the left side of the footpath. On
seeing the police party he tried to run away leaving
the bags which raised a suspicion in the mind of the
Sub-Inspector and that led to the apprehension and
interrogation of the accused. Eventually, on search
of the bags, it was found that those contained 64
Kgs. of poppy straw powder packed in 32 bags of
polythene. After the search was carried out samples
were sealed and sent to the Forensic Science
Laboratory for examination. The investigating
agency on completion of other formalities filed the
charge-sheet before the trial Court.
3. The accused pleaded false implication and claimed
to be tried.
4. On behalf of the prosecution eight witnesses were
examined including the Sub-Inspector, Ritesh Kumar,
and Constable Balwant Singh. The learned Additional
2Page 3
Sessions Judge, Delhi in Sessions Case No. 90 of
2006, considering the material on record, found the
accused guilty of the offence and imposed the
sentence as has been stated hereinbefore.
5. Ms. Sushmita Lal, learned counsel for the appellant,
has raised two contentions, namely, (i) though the
alleged seizure had taken place at a crowded place,
yet the prosecution chose not to examine any
independent witness and in the absence of
corroboration from independent witnesses the
evidence of only police officials should not have been
given credence to and (ii) there has been noncompliance of Section 50 of the NDPS Act inasmuch
as the accused was not informed his right to be
searched in presence of a gazetted officer or a
Magistrate despite the mandatory nature of the
provision and, therefore, the conviction is vitiated.
6. Per contra, it is urged by Mr. Rakesh Khanna, learned
Additional Solicitor General and Mr. Vivek Chib,
learned advocate appearing for the respondent, state
that the learned trial Judge as well as the High Court
3Page 4
has correctly placed reliance on the testimony of the
official witnesses and there is no mandatory rule that
non-examination of independent witnesses in all
circumstances would vitiate the trial. It is their
further submission that Section 50 of the NDPS Act is
not attracted to the case at hand as two bags were
searched and not the person of the accusedappellant.
7. To appreciate the first limb of submission, we have
carefully scrutinized the evidence brought on record
and perused the judgment of the High Court and that
of the trial Court. It is noticeable that the evidence
of PW-7, namely, Ritesh Kumar, has been supported
by Balwant Singh, PW-5, as well as other witnesses.
It has come in the evidence of Ritesh Kumar that he
had asked the passerby to be witnesses but none of
them agreed and left without disclosing their names
and addresses. On a careful perusal of their version
we do not notice anything by which their evidence
can be treated to be untrustworthy. On the contrary
it is absolutely unimpeachable. We may note here
4Page 5
with profit there is no absolute rule that police
officers cannot be cited as witnesses and their
depositions should be treated with suspect. In this
context we may refer with profit to the dictum in
State of U.P. v. Anil Singh1
, wherein this Court
took note of the fact that generally the public at large
are reluctant to come forward to depose before the
court and, therefore, the prosecution case cannot be
doubted for non-examining the independent
witnesses.
8. At this juncture a passage from State, Govt. of NCT
of Delhi v. Sunil and another2
 is apt to quote : -
“21. We feel that it is an archaic notion that
actions of the police officer should be
approached with initial distrust. We are
aware that such a notion was lavishly
entertained during the British period and
policemen also knew about it. Its hangover
persisted during post-independent years but
it is time now to start placing at least initial
trust on the actions and the documents made
by the police. At any rate, the court cannot
start with the presumption that the police
1
 1988 Supp SCC 686
2
 (2001) 1 SCC 652
5Page 6
records are untrustworthy. As a proposition of
law the presumption should be the other way
around. That official acts of the police have
been regularly performed is a wise principle
of presumption and recognised even by the
legislature. Hence when a police officer gives
evidence in court that a certain article was
recovered by him on the strength of the
statement made by the accused it is open to
the court to believe the version to be correct
if it is not otherwise shown to be unreliable. It
is for the accused, through cross-examination
of witnesses or through any other materials,
to show that the evidence of the police officer
is either unreliable or at least unsafe to be
acted upon in a particular case. If the court
has any good reason to suspect the
truthfulness of such records of the police the
court could certainly take into account the
fact that no other independent person was
present at the time of recovery. But it is not a
legally approvable procedure to presume the
police action as unreliable to start with, nor
to jettison such action merely for the reason
that police did not collect signatures of
independent persons in the documents made
contemporaneous with such actions.”
6Page 7
9. In Ramjee Rai and others v. State of Bihar3
, it
has been opined as follows: -
“26. It is now well settled that what is
necessary for proving the prosecution case is
not the quantity but quality of the evidence.
The court cannot overlook the changes in the
value system in the society. When an
offence is committed in a village owing to
land dispute, the independent witnesses may
not come forward.”
10. Keeping in view the aforesaid authorities, it can
safely be stated that in the case at hand there is no
reason to hold that non-examination of the
independent witnesses affect the prosecution case
and, hence, we unhesitatingly repel the submission
advanced by the learned counsel for the appellant.
11. The second limb of proponement of the learned
counsel for the appellant pertains to non-compliance
of Section 50 of the NDPS Act. In this context, the
learned counsel has drawn inspiration from the
pronouncement of the Constitution Bench in
3
 (2006) 13 SCC 229
7Page 8
Vijaysinh Chandubha Jadeja v. State of
Gujarat4
. The larger Bench after referring to Objects
and Reasons of the NDPS Act and various provisions,
namely, Sections 41, 42 and 50 of the said Act, to the
earlier Constitution Bench decisions in State of
Punjab v. Baldev5
 and Karnail Singh v. State of
Haryana6
, and certain other authorities, eventually,
opined thus: -
“29. In view of the foregoing discussion, we
are of the firm opinion that the object with
which the right under Section 50(1) of the
NDPS Act, by way of a safeguard, has been
conferred on the suspect viz. to check the
misuse of power, to avoid harm to innocent
persons and to minimise the allegations of
planting or foisting of false cases by the law
enforcement agencies, it would be imperative
on the part of the empowered officer to
apprise the person intended to be searched
of his right to be searched before a gazetted
officer or a Magistrate. We have no hesitation
in holding that insofar as the obligation of the
authorised officer under sub-section (1) of
Section 50 of the NDPS Act is concerned, it is
4
 (2011) 1 SCC 609
5
 (1999) 6 SCC 172
6
 (2009) 8 SCC 539
8Page 9
mandatory and requires strict compliance.
Failure to comply with the provision would
render the recovery of the illicit article
suspect and vitiate the conviction if the same
is recorded only on the basis of the recovery
of the illicit article from the person of the
accused during such search. Thereafter, the
suspect may or may not choose to exercise
the right provided to him under the said
provision.”
12. The principle of substantial compliance, as laid down
in Joseph Fernandez v. State of Goa7
 and Prabha
Shankar Dubey v. State of M.P.8
, was not
accepted as the ratio laid therein was not in
consonance with the dictum laid down in Baldev
Singh’s case (supra). Similar principle has been
reiterated in Myla Venkateswarlu v. State of
Andhra Pradesh9
 and Ashok Kumar Sharma v.
State of Rajasthan10
.
13. We have referred to the aforesaid decisions as the
learned counsel has strenuously urged that the
7
 (2000) 1 SCC 707
8
 (2004) 2 SCC 56
9
 (2012) 5 SCC 226
10 (2013) 2 SCC 67
9Page 10
provision, being mandatory, there has to be strict
compliance. But, a significant one, in the case at
hand 32 bags of poppy straw powder weighing 64
Kgs. had been seized from two bags. It has not been
seized from the person of the accused-appellant. It
has been established by adducing cogent and
reliable evidence that the bags belonged to the
appellant. In Ajmer Singh v. State of Haryana11
the appellant was carrying a bag on his shoulder and
the said bag was searched and contraband articles
were seized. While dealing with the applicability of
Section 50 of the NDPS Act, two learned Judges
referred to the decisions in Madan Lal v. State of
H.P.12 and State of H.P. v. Pawan Kumar13, and
came to hold as follows: -
“Thus, applying the interpretation of the word
“search of person” as laid down by this Court
in the decision mentioned above, to facts of
present case, it is clear that the compliance
with Section 50 of the Act is not required.
Therefore, the search conducted by the
11 (2010) 3 SCC 746
12 (2003) 7 SCC 465
13 (2005) 4 SCC 350
1Page 11
investigating officer and the evidence
collected thereby, is not illegal.
Consequently, we do not find any merit in the
contention of the learned counsel of the
appellant as regards the non-compliance with
Section 50 of the Act.”
14. Tested on the bedrock of the aforesaid dictum, the
contention, so assiduously raised, that there has
been non-compliance of Section 50 of the NDPS Act is
wholly sans substance.
15. In view of the aforesaid premised reasons, the
appeal, being devoid of merit, stands dismissed.
…………………………….J.
[Dr. B.S. Chauhan]
….………………………….J.
[Dipak Misra]
New Delhi;
May 21, 2013.
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