DILBAGH SINGH Vs. STATE OF PUNJAB
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 (NDPS)
Section 15 - Punishment for contravention in relation to poppy straw
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1096 of 2016, Judgment Date: Nov 28, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1096 OF 2016
(ARISING OUT OF S.L.P (CRIMINAL) NO.6093 OF 2015)
DILBAGH SINGH .…APPELLANT
VERSUS
STATE OF PUNJAB ....RESPONDENT
J U D G M E N T
AMITAVA ROY, J.
(1) Heard Ms. Aparna Jha, learned counsel for the appellant and Mr. V.
Madhukar, learned counsel for the respondent.
(2) The appellant, faced with concurrent determinations culminating in
his conviction along with another, under Section 15 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (for short “the Act”) is before this
Court seeking redress. Whereas the Trial Court, upon the entering finding
of guilt had sentenced the accused persons with rigorous imprisonment for
10 years and six months each and fine of Rs.1 lac each with default
sentence of rigorous imprisonment for one year, the High Court in appeal
has confirmed the verdict in toto by the decision impugned herein.
(3) The prosecution case unfolds with the interception of the appellant
and the co-accused Ranjit Singh by the patrol party on 28.08.2007 while
they were travelling in a car bearing registration No.MH-04BS-1651 at the
check point at Khanauri Patran. One Baaj Singh, apart from the police party
was then present. The appellant and his companion, on being interrogated,
disclosed their names. Their car on search revealed six bags stuffed with
Poppy Husk.
(4) The Investigation Officer, A.S.I. Satnam Singh introduced himself and
apprised the appellant and the co-accused of their right to be searched in
the presence of a Gazetted Officer or a Magistrate if they so desired but
they declined and instead reposed confidence in him. After recording their
consent in writing the car was searched in presence of the other members of
the patrol party as well as Baaj Singh and in course thereof three bags
each from the rear seat and the dicky, containing Poppy Husk were
recovered. Samples were taken and sealed with specimen impression of the
Investigating Officer. On weighment of the remaining Poppy Husk, the
contraband weighed 34 kg. 800 gms in each bag minus the samples taken.
Personal search of the appellant and the co-accused yielded currency of
Rs.225/- and Rs.150/- respectively which were also seized. The information
of the exercise was forwarded to the police station on which a formal FIR
was lodged.
(5) The sealed samples as well as the contraband as a whole were
deposited in the malkhana and were also produced before the concerned
Magistrate on the next date along with the accused persons. The sample on
chemical examination by the Forensic Science Laboratory disclosed the same
to be of Poppy Husk. Eventually, on completion of the investigation challan
was submitted and the appellant and the co-accused were made to face trial
under Sections 15 and 25 of the Act, as they pleaded “not guilty”.
(6) In support of the charge, the prosecution examined PW-1/Constable
Ravinder Singh, PW-2/S.I. Jaswinder Singh, PW-3/M.H.C. Shamsher Singh, PW-
4/A.S.I. Satnam Singh, PW-5/H.C. Darbara Singh and PW-6 Parminderpal Singh,
who had participated in the entire drill.
(7) All the incriminating circumstances were laid before the accused
persons in course of their examination under Section 313 Cr.P.C. and they
denied the correctness thereof and complained of false implication.
(8) The Trial Court on a consideration of the evidence on record and
after analysing the rival contentions held the charge to be proved and
convicted and sentenced both the accused persons as above. The appellant
unsuccessfully challenged the conviction and sentence before the High
Court.
(9) The learned counsel for the appellant has asserted that as the
Investigating Agency had contravened the mandatory prescriptions of
Sections 50 and 57 of the Act, the conviction recorded by the Courts below
is patently illegal and non est in law. According to her, though allegedly
Poppy Husk was recovered from the car in which the appellant and the co-
accused were travelling at the relevant point of time, adherence to the
mandate of Section 50 of the Act was indispensable. Similarly, as no report
of the operation undertaken by the Investigating Agency involving the
alleged seizure of the contraband had been reported to the superior officer
concerned, the exercise was in gross defiance of the edict of Section 57 of
the Act rendering the same null and void. The learned counsel for the
appellant, to reinforce the above pleas has pressed into service the
decision of this Court in Mohinder Kumar vs. State, Panaji, Goa – (1998) 8
SCC 655. No other argument has been advanced.
(10) As against this, the learned counsel for the respondent has insisted
that the investigation had been conducted in meticulous compliance of the
dicta of the law qua Sections 50 and 57 of the Act in particular. Not only
the accused persons were duly apprised of their right of search in presence
of a Gazetted Officer or a Magistrate before the search of their car, they
were afforded all opportunities to offer their defence in the process
undertaken. According to the learned counsel, the fact of the interception
of the accused persons and the recovery of the contraband had been
communicated to the concerned police station and to the Ilaka Magistrate
through the higher officer i.e., Deputy Superintendent of Police without
any delay whatsoever. The sample with the stock of Poppy Husk was properly
sealed and deposited with the malkhana immediately as per the procedure
prescribed as well, he urged. The learned counsel further submitted that
though in a way, compliance of Section 50 of the Act was inessential in the
facts of the case, as the vehicle was searched which yielded the
contraband, the Investigating Officer by way of abundant caution did adhere
thereto as well. As the information with regard to the entire gamut of the
investigation had been forwarded to the higher officer i.e. Deputy
Superintendent of Police and to the concerned Magistrate without any delay,
the demur based on Sections 50 and 57 of the Act is wholly misplaced, he
urged.
(11) The evidence on record as well as the rival assertions have been duly
evaluated.
(12) As the essence of the impeachment is the non-compliance of the
enjoinment of Sections 50 and 57 of the Act, for ready reference, these
provisions are extracted herein below:
“50. Conditions under which search of persons shall be conducted - (1) When
any officer duly authorised under Section 42 is about to search any person
under the provisions of Section 41, Section 42 or Section 43, he shall, if
such person so requires, take such person without unnecessary delay to the
nearest Gazetted Officer of any of the departments mentioned in Section 42
or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he
can bring him before the Gazetted Officer or the Magistrate referred to in
sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is
brought shall, if he sees no reasonable ground for search, forthwith
discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe
that it is not possible to take the person to be searched to the nearest
Gazetted Officer or Magistrate without the possibility of the person to be
searched parting with possession of any narcotic drug or psychotropic
substance, or controlled substance or article or document, he may, instead
of taking such person to the nearest Gazetted Officer or Magistrate,
proceed to search the person as provided under section 100 of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall
record the reasons for such belief which necessitated such search and
within seventy-two hours send a copy thereof to his immediate official
superior.
57. Report of arrest and seizure - Whenever any person makes any arrest
or seizure under this Act, he shall, within forty-eight hours next after
such arrest or seizure, make a full report of
all the particulars of such arrest or seizure to his immediate official
superior.
(13) Whereas the conditions under which, the search as contemplated in
Section 50 are limited only to the contingency of search of any person,
Section 57 prescribes that whenever any person makes any arrest or seizure
under the Act, he would within 48 hours next after such arrest or seizure,
make a full report of all the particulars of such arrest or seizure to his
immediate official superior. As it is no longer res integra that the
application of Section 50 of the Act is comprehended and called for only in
the case of search of a person as distinguished from search of any premises
etc. having been authoritatively propounded by the two Constitution Bench
rulings of this Court in State of Punjab vs. Baldev Singh – (1999) 6 SCC
172 and Vijaysinh Chandubha Jadeja vs. State of Gujarat – (2011) 1 SCC 609,
further dilation in this regard, in the attendant facts and circumstances
of the case, is considered inessential. This is more so as the contraband
in the case in hand had been recovered from inside the car in which the
petitioner and the co-accused were travelling at the relevant point of time
and not in course of the search of their person. Noticeably, it had also
not been the plea of the defence ever that the alleged seizure according to
the accused persons had been from their person. In the contextual facts
therefore, Section 50 has no application to espouse the cause of the
defence.
(14) Qua the imputation of non-adherence of the requisites of Section 57
of the Act, suffice it to note that both the Courts below, on an analytical
appreciation of the evidence on record have concurrently concluded that the
Investigating Officer at the site, had after the arrest of the accused
persons and or seizure of the contraband forwarded the information with
regard thereto to his higher officer, namely, Deputy Superintendent of
Police without any delay and that the related FIR with the necessary
endorsements therein had reached the Ilaka Magistrate on the same date i.e.
28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by the
learned counsel for the petitioner to either contradict or decimate this
finding based on records. In this view of the matter as well, the assertion
of non-compliance of Section 57 of the Act does not commend for acceptance.
In our view, having regard to the facts available, the requirements of
Section 57 of the Act had been duly complied with as well.
(15) The decision in Mohinder Kumar (supra) not only is distinguishable on
facts, as the search therein was of the petitioner's premises, the
investigation was afflicted as well by several other omissions on the part
of the authority conducting the same. Though in this rendering, it was
observed that in State of Punjab vs. Balbir Singh – (1994) 3 SCC 299 the
provisions of Sections 52 and 57 of the Act had been held to be mandatory
in character, it is pertinent to note that this Court in Sajan Abraham vs.
State of Kerala – (2001) 6 SCC 692 had exposited that Section 57 was not
mandatory in nature so much so that if a substantial compliance thereof is
made, it would not vitiate the case of the prosecution. Incidentally the
decision rendered in Balbir Singh (supra) was rendered by a Coram of two
Hon’ble Judges whereas the one in Sajan Abraham (supra) was by a three
Judge Bench.
(16) In Balbir Singh (supra), a Bench of two Hon'ble Judges of this Court
had enunciated, adverting to Sections 52 and 57 of the Act that these
provisions contain certain procedural instructions for strict compliance
by the officers, but clarified that if there was none, such omission by
itself would not render the acts done by them null and void and at the
most, it may affect the probative value of the evidence regarding arrest
or search and in some cases, it may invalidate such arrest or search. That
the non-compliance had caused prejudice to the accused persons and had
resulted in failure of justice was necessary to be demonstrated, was
emphasised. It was ruled that these provisions, which deal with the steps
to be taken by the officers after making arrest or seizure under Section 41
and 44 are by themselves not mandatory and if there was non-compliance or
any delay was involved with regard thereto, then it has to be examined, to
ascertain as to whether any prejudice had been caused to the accused and
further whether, such failure would have a bearing on the appreciation of
evidence regarding arrest or seizure as well as on the merits of the case.
(17) Be that as it may, having regard to the evidence available attesting
the compliance of the requisites of Section 57 of the Act in the instant
case, we need not be detained by this issue in praesenti.
(18) Aside the above, an appraisal of the testimony of the prosecution
witnesses and in particular of PW-4 ASI/Satnam Singh and PW-5 HC/Darbara
Singh, the seizure witnesses, fully substantiate the recovery of the
contraband i.e. Poppy Husk from the conscious possession of the accused
persons. That the samples were properly sampled, sealed and forwarded to
the Forensic Science Laboratory through Malkhana also stands established.
The certificate of the Chemical Examiner, FSL to the effect that the seal
of the samples was found intact and that the same tallied with the specimen
seals also rules out the possibility of any tampering therewith. The fact
that the contraband was recovered from the car while the same was being
driven by one of the accused persons in the company of the other also
authenticate the charge of their conscious possession thereof. The haul of
six bags of Poppy Husk is substantial so much so that it negates even the
remote possibility of the same being planted by the police. Furthermore no
evidence with regard to bias or malice against the Investigating Agency has
been adduced.
(19) In the wake of the above, we are of the unhesitant opinion in the
face of the evidence on record, that the prosecution has been able to prove
the charge against the accused persons beyond all reasonable doubt. The
Courts below have appreciated the materials on record in the correct legal
and factual perspectives and the findings recorded do not merit any
interference. The appeal is thus dismissed. The Trial Court is hereby
directed to take immediate follow up the steps so as to ensure that the
sentence awarded is served out by the accused persons.
.............................................J.
(DIPAK MISRA)
............................................J.
(AMITAVA ROY)
NEW DELHI;
NOVEMBER 28, 2016.
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