//
you're reading...
legal issues

NDPS Act = Search and seizer is a mandatory under sec.42 and sec.50 = Balbir singh principle – Gurjant Singh @ Janta …. Appellant VERSUS State of Punjab …. Respondent = http://judis.nic.in/supremecourt/imgst.aspx?filename=40907

NDPS Act = Search and seizer is a mandatory under sec.42 and

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

sec.50 =  but when police officer himself summoned DSP who is an acting DSP with out DSP rank then the Balbir singh principle not apply

 

Lower court and High court committed grave error – Apex court set aside =

 

Balbir  Singh  principle 

 

 

 

  If a police officer without any prior information as  contemplated

 

      under the provisions of the NDPS Act  makes  a  search  or  arrests  a

 

      person in the normal  course  of  investigation  into  an  offence  or

 

      suspected offences as provided under the provisions of CrPC  and 

 

 

 

when

 

      such search is completed at that stage Section  50  of  the  NDPS  Act

 

      would not  be  attracted  and  the  question  of  complying  with  the

 

      requirements thereunder would not arise.  

 

 

 

If  during  such  search  or

 

      arrest there is a chance recovery of any narcotic drug or psychotropic

 

      substance then the police officer, who is not empowered, should inform

 

      the empowered officer who should thereafter proceed in accordance with

 

      the provisions of the NDPS Act. 

 

 

 

If  he  happens  to  be  an  empowered

 

      officer also, then from that stage onwards, he should  carry  out  the

 

      investigation in accordance with the  other  provisions  of  the  NDPS

 

      Act.” =

 

 

 

       when admittedly Section 50 was invoked by  offering

 

      the presence of a Gazetted officer or a Magistrate  to  the  appellant

 

      and at the request of P.W.6, P.W.3, who was stated to be the D.S.P. at

 

      that point of time, was summoned and in whose presence the search  and

 

      seizure was stated to have  been  made,  the  trial  Court  failed  to

 

      appreciate whether such  a  search  or  seizure  was  really  held  in

 

      accordance with Sections 42 and 50 of the NDPS Act.

 

 

 

  25. One of the grounds raised on behalf of the appellant  was  that  P.W.3

 

      was not holding the post of D.S.P. in a substantive manner in order to

 

      hold that he was a Gazetted officer on the date of  search.  According

 

      to the appellant, P.W.3 was not a regularly promoted  D.S.P.  but  was

 

      only an Inspector functioning as a D.S.P. in a  category  called  ‘Own

 

      Rank Pay’ D.S.P. According to the appellant, P.W.3 was drawing the pay

 

      of an Inspector from I.R.D. and was not holding the post of D.S.P.  on

 

      a regular basis. It was, therefore, contended that such a  person  who

 

      was not duly promoted as D.S.P., cannot be equated to the status of  a

 

      Gazetted officer in order to hold  that  a  search  conducted  in  his

 

      presence was a valid search as contemplated under Section  50  of  the

 

      NDPS Act. 

 

As far as the said point raised on behalf of the  appellant,

 

      we do not find any material or a counter-stand  taken  to  the  effect

 

      that P.W.3 was a regularly promoted D.S.P. or that as  per  the  rules

 

      even as an ‘Own Rank Pay’ D.S.P.,he could  be  equated  to  any  other

 

      D.S.P., holding a substantive post. 

 

Unfortunately,  as  stated  by  us

 

      earlier, the trial Court having taken a view that Sections 42  and  50

 

      were not applicable, completely omitted to examine  the  said  defence

 

      raised on behalf of the appellant. 

 

We also  do  not  find  any  contra

 

      evidence laid on behalf of the prosecution to counter the said  ground

 

      raised on behalf of the appellant.

 

 

 

  26. In such circumstances it will be highly dangerous to simply affirm the

 

      ultimate conclusion  of  the  trial  Court  in  having  convicted  the

 

      appellant and the sentence imposed based on such  conviction,  as  the

 

      same was without any ratiocination. It was most unfortunate  that  the

 

      High Court failed to independently  examine  the  correctness  of  the

 

      findings recorded by the trial Court by simply extracting a portion of

 

      the judgment of the trial Court, while affirming the conviction.

 

 

 

  27. For all the above stated reasons, the judgment of the trial Court  and

 

      the confirmation of the same by the High Court  cannot  be  sustained.

 

      The appeal stands allowed. The conviction and sentence imposed on  the

 

      appellant is set aside and the  appellant  shall  be  set  at  liberty

 

      forthwith, if not required in any other case.

 

 

 

Reportable

 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

 

CRIMINAL APPEAL NO.1868 OF 2013
(@ SLP (CRL.) No.3407 of 2012)

 
Gurjant Singh @ Janta …. Appellant

 
VERSUS

 

 

 

State of Punjab …. Respondent

 

J U D G M E N T

 
Fakkir Mohamed Ibrahim Kalifulla, J.

 

1. Delay condoned.
2. Leave granted.

 

3. This appeal is directed against the judgment of the High Court of
Punjab and Haryana at Chandigarh dated 12.08.2010 in Criminal Appeal
No.5-SB of 2000. The appellant was proceeded against for an offence
under Section 15 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (hereinafter called “the NDPS Act”). The trial Court by its
judgment dated 30.07.1999, in Sessions Case No.39 of 31.05.1996, found
the appellant guilty of the offence alleged against him and while
convicting him imposed a sentence of 10 years rigorous imprisonment
apart from a fine of Rs.1,00,000/- (Rupees One Lac only) and in
default of payment of fine to undergo rigorous imprisonment for one
more year.

 

4. The case of the prosecution as projected before the trial Court was
that on 04.04.1996, S.I. Darbara Singh, who was examined as P.W.6, was
posted as S.H.O, Police Station, Sunam. According to him he along with
A.S.I. Balbir Singh, A.S.I. Massa Singh, H.C. Bhim Sain and other
police officers were present at ‘T’ point in an area of village
Ugrahan in connection with Nakabandi. At about 00.15 AM, one tractor
trolley was seen coming from the side of village Ugrahan. The head
lights of the tractor trolley were on and P.W.6 gave a signal from his
torch light and the tractor trolley was stopped by the driver.
According to P.W.6, as soon as the tractor trolley was stopped, the
driver who tried to slip away was overpowered by P.W.6 and other
police officials. The driver stated to have revealed his name as
Gurjant Singh @ Janta, the appellant herein. Thereafter, when P.W.6
checked the trolley of the tractor he found three gunny bags lying
inside the trolley. P.W.6 informed the appellant that he intended to
search the gunny bags as he suspected some incriminating article in
the gunny bags. P.W.6 further informed the appellant that, if he so
desired, the search could be conducted in the presence of a Gazetted
officer or a Magistrate. The appellant stated to have expressed his
consent that the search may be conducted in the presence of some
Gazetted officer or a Magistrate.

 

5. After recording the statement of the appellant and after getting his
signature attested by A.S.I Balbir Singh and A.S.I Massa Singh, P.W.6
claimed to have flashed a wireless message whereupon Baldev Singh,
DSP, Sunam, who was examined as P.W.3, reached the spot. P.W.6 stated
to have searched the gunny bags lying in the tractor trolley in which
poppy husk was recovered. P.W.6 claimed to have drawn two samples of
250 gms from each of the gunny bag. The remaining poppy husk, which
weighed to the extent of 34 kg in each of the gunny bag, was stated to
have been separately sealed, while the six sample parcels were also
sealed separately with the impression ‘DS’. P.W.6 also claimed to have
prepared a sample seal chit separately. Tractor trolley and the case
properties were taken into possession by P.W.6 through a recovery memo
attested by P.W.3 as well as by A.S.I Balbir Singh and A.S.I. Massa
Singh. The appellant was stated to have been arrested, and the arrest
memo along with Rukka, was sent to the police station through C.
Harjinder Singh, based on which an FIR was recorded by A.S.I Sukhdev
Singh. After preparing the rough site plan of the place of recovery
with correct marginal notes and after recording the statement of the
witnesses on the same day, P.W.6 stated to have deposited the case
property with the MHC with seals intact along with the sample seal.

 

6. The final report was thereafter stated to have been filed in the
Court. Before the trial Court P.W.1 Kulwant Singh, Registration Clerk,
P.W.2 A.S.I Balbir Singh, P.W.3 D.S.P. Baldev Singh, P.W.4 Harbans
Singh C.No.365, P.W.5 Jaswinder Singh and P.W.6 S.I. Darbara Singh
were examined and the report of the Chemical Examiner Ex.PK was also
filed. When the incriminating circumstances were put to the appellant
under Section 313 Cr.P.C, appellant pleaded false implication alleging
that he was taken away from his house in the presence of his wife and
a false case was planted on him. In defence, the appellant examined
H.C. Paramjit Singh as D.W.1 Gurmail Kaur, his wife as D.W.2 and one
other witness C. Avtar Singh as D.W.3.

 

7. Before the trial Court it was contended on behalf of the appellant
that there was clear violation of Sections 42 and 50 of the NDPS Act,
in as much as, the search was not conducted in the presence of a
Gazetted officer or a Magistrate. According to the appellant, he was
forcibly taken away from his house and a false case was planted and
the claim that search was made in the presence of P.W.3 was not true.
It was also contended that P.W.3 was not a regularly promoted D.S.P.
but was only an Inspector in the category of Own Rank Pay (ORP). It
was contended that since he was only an Inspector and was drawing the
pay of an Inspector, while acting as D.S.P, he cannot be held to be a
Gazetted Officer.

 

8. The trial Court, however, took the view that there was no necessity to
comply with Section 50 of the NDPS Act and on that basis did not go
into the question whether P.W.3 was a competent Gazetted Officer, in
order to validate the search stated to have been held in his presence.
The trial Court in support of its conclusion relied upon the judgment
in the case of State of Punjab vs. Balbir Singh reported in (1994) 3
SCC 299 and found the appellant guilty of the offence alleged against
him and convicted him by imposing a sentence of 10 years rigorous
imprisonment along with the fine of Rs.1 lac with the default clause
to undergo imprisonment for one more year. In the appeal preferred by
the appellant before the High Court, unfortunately, the High Court by
simply extracting the concluding part of the judgment of the trial
Court chose to confirm the conviction and sentence. The appellant has,
therefore, come forward with this appeal.

 

9. We heard Mr. S.S. Ray, learned counsel for the appellant as well as
Mr. Sanchar Anand, learned Additional Advocate General for the
respondent. The learned counsel for the appellant mainly contended
that there was non-compliance of Section 50 in the matter of search
alleged to have been made on the appellant and the tractor; that the
contention of the appellant about the status of P.W.3 that he was not
a Gazetted officer on the date of the alleged search was not
considered by the Courts below and that none of the defence witnesses
were properly appreciated by the trial Court as well as by the High
Court. The learned counsel, therefore, contended that the conviction
and sentence imposed on the appellant cannot be sustained.

 

10. Reliance was placed upon the decisions in State of Punjab vs. Baldev
Singh reported in (1999) 6 SCC 172, State of H.P. vs. Pawan Kumar
reported in (2005) 4 SCC 350 in support of his submissions.

 

11. Learned Additional Advocate General in his submissions contended that
there was no illegality in the judgment of the trial Court in
convicting the appellant and the imposition of sentence and,
therefore, the High Court was justified in confirming the same.
Learned Additional Advocate General contended that the reliance placed
upon the decision of this Court by the trial Court, namely, the one in
Balbir Singh (supra) was well justified. The learned Additional
Advocate General, therefore, contended that the judgment impugned does
not call for interference.

 

12. Having considered the respective submissions and also having bestowed
our serious consideration to the judgment of the trial Court, as well
as that of the High Court, at the very outset we wish to state that
the reliance placed upon by the trial Court in Balbir Singh (supra)
was totally inappropriate to the facts of this case and consequently
the ratiocination of the trial Court in having held that Sections 42
and 50 were not attracted to the case on hand was not correct.

 

13. When we refer to the decision of this Court in Balbir Singh (supra),
what has been held therein as a broad principle in paragraph 25(1), is
as under:
“25. The questions considered above arise frequently before the trial
courts. Therefore we find it necessary to set out our conclusions
which are as follows:
(1) If a police officer without any prior information as contemplated
under the provisions of the NDPS Act makes a search or arrests a
person in the normal course of investigation into an offence or
suspected offences as provided under the provisions of CrPC and when
such search is completed at that stage Section 50 of the NDPS Act
would not be attracted and the question of complying with the
requirements thereunder would not arise. If during such search or
arrest there is a chance recovery of any narcotic drug or psychotropic
substance then the police officer, who is not empowered, should inform
the empowered officer who should thereafter proceed in accordance with
the provisions of the NDPS Act. If he happens to be an empowered
officer also, then from that stage onwards, he should carry out the
investigation in accordance with the other provisions of the NDPS
Act.”

 

14. The said principle clearly 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 Cr.P.C. 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. When that principle is examined carefully one can easily
understand that without 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 Cr.P.C and, therefore, it would well neigh
impossible to state that even under such a situation, the application
of Section 50 would get attracted. In fact, if we examine the facts
involved in Balbir Singh (supra), as per the contention of learned
counsel for the State, in that decision the police officer effected
the arrest, search and seizure on reasonable suspicion that a
cognizable offence was committed and not based on any prior
information that any offence punishable under NDPS Act was committed
and, therefore, it was argued that complying with the provisions of
the NDPS Act at the time of the said arrest, search and seizure did
not arise in as much as such arrest, search and seizure was
substantially in accordance with the provisions of the Cr.P.C. It was,
therefore, contended that such arrest, search and seizure cannot be
declared as illegal. While examining the contention in the said
background, principle no.1 in paragraph 25 came to be rendered.

 

15. However, while analyzing the importance of Section 50 of the NDPS Act
in that very decision, this Court has held as under in paragraph 20:

 

“20. In Miranda v. Arizona the Court, considering the question whether
the accused be apprised of his right not to answer and keep silent
while being interrogated by the police, observed thus:
“At the outset, if a person in custody is to be subjected to
interrogation, he must first be informed in clear and
unequivocal terms that he has the right to remain silent. For
those unaware of the privilege, the warning is needed simply to
make them aware of it — the threshold requirement for an
intelligent decision as to its exercise. More important, such a
warning is an absolute prerequisite in overcoming the inherent
pressures of the interrogation atmosphere.”
It was further observed thus:
“The warning of the right to remain silent must be accompanied
by the explanation that anything said can and will be used
against the individual in court. This warning is needed in order
to make him aware not only of the privilege, but also of the
consequences of foregoing it. It is only through an awareness of
these consequences that there can be any assurance of real
understanding and intelligent exercise of the privilege.
Moreover, this warning may serve to make the individual more
acutely aware that he is faced with a phase of the adversary
system — that he is not in the presence of persons acting solely
in his interest.”
When such is the importance of a right given to an accused person in
custody in general, the right by way of safeguard conferred under
Section 50 in the context is all the more important and valuable.
Therefore it is to be taken as an imperative requirement on the part
of the officer intending to search to inform the person to be searched
of his right that if he so chooses, he will be searched in the
presence of a Gazetted Officer or a Magistrate. Thus the provisions of
Section 50 are mandatory.”

 

16. If the ratio of the said decision had been properly understood, the
flaw committed by the trial Court and as confirmed by the High Court
in our considered opinion would not have arisen. The distinct feature
in the case on hand was that on the date of occurrence i.e. on
04.04.1996 at 00.15 AM, the police party headed by P.W.6, accosted a
tractor trolley coming from the side of village Ugrahan, which was
stopped by him and that when the driver after stopping the tractor
tried to escape was apprehended by the police team. The most crucial
aspect of the case was that P.W.6 noticed three gunny bags lying in
the tractor of the appellant and felt that some incriminating
substance was kept in those gunny bags. P.W.6, therefore, took the
view that before effecting search of the gunny bags, the necessity of
affording an opportunity to the appellant to conduct the search in the
presence of a Gazetted officer or a Magistrate was imperative. In
other words, after noticing three gunny bags, P.W.6, as an
investigating officer, felt the need to invoke the provisions of
Section 50 and thereby provide an opportunity to the appellant for
holding any search in the presence of a Gazetted officer or a
Magistrate. When once P.W.6 could assimilate the said legal
requirement as stipulated under Section 50 of the NDPS Act, we fail to
understand as to how principle No.1 in paragraph 25 of the decision
reported in Balbir Singh (supra) could be applied. Unfortunately, the
trial Court failed to understand the said principle set out in Balbir
Singh (supra) in the proper perspective while holding that neither
Section 42 nor Section 50 was attracted to the facts of this case.

 

17. On the other hand even according to the prosecution, namely, the
investigating officer himself, i.e. P.W.6, a search was required after
apprehending the appellant along with the tractor and the gunny bags
and such search had to be necessarily conducted in accordance with
Section 50 of the NDPS Act. It was further the case of the prosecution
that such a step was pursued by calling upon the appellant to exercise
his opinion and after affirmatively ascertaining whether he wanted any
search to be conducted in the presence of the Gazetted officer, only
then P.W.3 was summoned, in whose presence the search operation was
held. Therefore, the conclusion of the trial Court in having held that
Sections 42 and 50 were not applicable to the case on hand was a total
misunderstanding of the legal provisions in the light of the facts
placed before it and consequently the conclusion arrived at for
convicting the appellant was wholly unjustified.

 

18. In fact, after reaching the said conclusion, all that the trial Court
did was to hold that the version of the prosecution witnesses cannot
be discarded merely because they were police officers and that the
evidence of P.W.3 was sufficient to support the search and recovery of
the narcotic substance from the appellant. The trial Court also held
that the version of the defence witnesses was not worth mentioning.

 

19. Unfortunately, the High Court has committed the same errors whilst
considering the correctness of the judgment of the trial Court. The
High Court being the first appellate Court was required to
independently reappraise the entire material, record the conclusions
supported by cogent reasons. In our opinion, the High Court failed to
exercise its jurisdiction in dismissing the appeal.

 

20. Before concluding, we wish to refer to the decisions placed before us
to state the importance of applying the stipulations contained in
Section 50, before holding the search, in order to ensure fair
consideration of the offence alleged against an accused under the NDPS
Act, before reaching any conclusion about the commission of the
alleged offence.

 

21. In the Constitution Bench decision of this Court in Baldev Singh
(supra), the importance of due compliance of Section 50 has been
mainly set out in paragraphs 28, 32 and 33 which are as under:
“28……The argument that keeping in view the growing drug menace, an
insistence on compliance with all the safeguards contained in Section
50 may result in more acquittals does not appeal to us. If the
empowered officer fails to comply with the requirements of Section 50
and an order or acquittal is recorded on that ground, the prosecution
must thank itself for its lapses. Indeed in every case the end result
is important but the means to achieve it must remain above board. The
remedy cannot be worse than the disease itself. The legitimacy of the
judicial process may come under a cloud if the court is seen to
condone acts of lawlessness conducted by the investigating agency
during search operations and may also undermine respect for the law
and may have the effect of unconscionably compromising the
administration of justice. That cannot be permitted.”

 

32. However, the question whether the provisions of Section 50 are
mandatory or directory and, if mandatory, to what extent and the
consequences of non-compliance with it does not strictly speaking
arise in the context in which the protection has been incorporated in
Section 50 for the benefit of the person intended to be searched.
Therefore, without expressing any opinion as to whether the provisions
of Section 50 are mandatory or not, but bearing in mind the purpose
for which the safeguard has been made, we hold that the provisions of
Section 50 of the Act implicitly make it imperative and obligatory and
cast a duty of the investigating officer (empowered officer) to ensure
that search of the person (suspect) concerned is conducted in the
manner prescribed by Section 50, by intimating to the person concerned
about the existence of his right, that if he so requires, he shall be
searched before a gazetted officer or a Magistrate and in case he so
opts, failure to conduct his search before a gazetted officer or a
Magistrate would cause prejudice to the accused and render the
recovery of the illicit article suspect and vitiate the conviction and
sentence of the accused, where the conviction has been recorded only
on the basis of the possession of the illicit article, recovered
during a search conducted in violation of the provisions of Section 50
of the Act. The omission may not vitiate the trial as such, but
because of the inherent prejudice which would be caused to an accused
by the omission to be informed of the existence of his right, it would
render his conviction and sentence unsustainable. The protection
provided in the section to an accused to be intimated that he has the
right to have his personal search conducted before a gazetted officer
or a Magistrate, if he so requires, is sacrosanct and indefeasible —
it cannot be disregarded by the prosecution except at its own peril.

 
33. The question whether or not the safeguards provided in Section 50
were observed would have, however, to be determined by the court on
the basis of the evidence led at the trial and the finding on that
issue, one way or the other, would be relevant for recording an order
of conviction or acquittal. Without giving an opportunity to the
prosecution to establish at the trial that the provisions of Section
50 and, particularly, the safeguards provided in that section were
complied with, it would not be advisable to cut short a criminal
trial.”

 
22. In Pawan Kumar (supra) wherein the Constitution Bench decision was
referred to and was reiterated as under in paragraph 26:
“26.……..Otherwise, there would be no distinction between recovery of
illicit drugs, etc. seized during a search conducted after following
the provisions of Section 50 of the Act and a seizure made during a
search conducted in breach of the provisions of Section 50. Having
regard to the scheme and the language used a very strict view of
Section 50 of the Act was taken and it was held that failure to inform
the person concerned of his right as emanating from sub-section (1) of
Section 50 may render the recovery of the contraband suspect and
sentence of an accused bad and unsustainable in law. As a corollary,
there is no warrant or justification for giving an extended meaning to
the word “person” occurring in the same provision so as to include
even some bag, article or container or some other baggage being
carried by him.”

 

23. The aforesaid observations of the above Constitution Bench decision in
Baldev Singh (supra) and the three Judge Bench decision in Pawan Kumar
(supra), clearly highlight the legal requirement of compliance of
Section 50 in its true spirit. It will have to be stated that such
compliance of the requirement under Section 50 of holding of a search
and seizure in the presence of Gazetted officer or a Magistrate,
cannot be an empty formality. In other words, the offer to the person
to be searched in the presence of a Gazetted officer or a Magistrate,
should really serve the purpose of ensuring that there was every bona
fide effort taken by the prosecution to bring forth the grave offence
of possession of narcotic substance and proceed against the person by
way of prosecution and thereby establish the truth before the
appropriate judicial forum. In the same breath such a course of
compliance of Section 50 would also enable the person accused of such
a grave offence to be convinced that the presence of such an
independent Gazetted officer or a Magistrate would also enable the
person proceeded against to demonstrate that there was no necessity
for holding any search on him and thereby persuade the concerned
Gazetted officer or Magistrate to protect his fundamental right of
freedom, from being unlawfully proceeded against. In other words, the
purpose of Section 50 was to ensure that on the one hand, the holding
of a search and seizure was not a farce of an exercise in order to
falsely implicate a person by unscrupulous police authorities, while
on the other hand to prevent an accused from committing an offence of
a serious nature against the society, warranting appropriate criminal
proceedings to be launched and in the event of establishing such
offence, conviction and sentence to be imposed in accordance with law.
Therefore, such a dual requirement of law prescribed under Section 50
cannot be dealt with lightly by the Courts dealing with the trial of
such offences brought before it.

 

24. Keeping the above principles in mind, when we examine the manner in
which the trial Court dealt with the case of the prosecution as well
as the defence pleaded, we find that the trial Court committed a
serious flaw in holding that Sections 42 and 50 were not attracted to
the case on hand, which we have found in the earlier paragraph was a
total misreading of the provision as well as the decision relied upon
by it. That apart, when admittedly Section 50 was invoked by offering
the presence of a Gazetted officer or a Magistrate to the appellant
and at the request of P.W.6, P.W.3, who was stated to be the D.S.P. at
that point of time, was summoned and in whose presence the search and
seizure was stated to have been made, the trial Court failed to
appreciate whether such a search or seizure was really held in
accordance with Sections 42 and 50 of the NDPS Act.

 

25. One of the grounds raised on behalf of the appellant was that P.W.3
was not holding the post of D.S.P. in a substantive manner in order to
hold that he was a Gazetted officer on the date of search. According
to the appellant, P.W.3 was not a regularly promoted D.S.P. but was
only an Inspector functioning as a D.S.P. in a category called ‘Own
Rank Pay’ D.S.P. According to the appellant, P.W.3 was drawing the pay
of an Inspector from I.R.D. and was not holding the post of D.S.P. on
a regular basis. It was, therefore, contended that such a person who
was not duly promoted as D.S.P., cannot be equated to the status of a
Gazetted officer in order to hold that a search conducted in his
presence was a valid search as contemplated under Section 50 of the
NDPS Act. As far as the said point raised on behalf of the appellant,
we do not find any material or a counter-stand taken to the effect
that P.W.3 was a regularly promoted D.S.P. or that as per the rules
even as an ‘Own Rank Pay’ D.S.P.,he could be equated to any other
D.S.P., holding a substantive post. Unfortunately, as stated by us
earlier, the trial Court having taken a view that Sections 42 and 50
were not applicable, completely omitted to examine the said defence
raised on behalf of the appellant. We also do not find any contra
evidence laid on behalf of the prosecution to counter the said ground
raised on behalf of the appellant.

 

26. In such circumstances it will be highly dangerous to simply affirm the
ultimate conclusion of the trial Court in having convicted the
appellant and the sentence imposed based on such conviction, as the
same was without any ratiocination. It was most unfortunate that the
High Court failed to independently examine the correctness of the
findings recorded by the trial Court by simply extracting a portion of
the judgment of the trial Court, while affirming the conviction.

 

27. For all the above stated reasons, the judgment of the trial Court and
the confirmation of the same by the High Court cannot be sustained.
The appeal stands allowed. The conviction and sentence imposed on the
appellant is set aside and the appellant shall be set at liberty
forthwith, if not required in any other case.
………….……….…………………………..J.
[Surinder Singh Nijjar]

 
………….…….………………………………J.
[Fakkir Mohamed Ibrahim Kalifulla]
New Delhi;
October 28, 2013.

 

Advertisements

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 1,937,047 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,874 other followers

Follow advocatemmmohan on WordPress.com