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2015 (5) TMI 442 - HC - CustomsConviction for offence under Section 21(c) of NDPS Act, 1985 - non-compliance of provisions of Section 50 of NDPS - Held 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. - 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 (2) TMI 1051 - SUPREME COURT] 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 not attracted. There is no evidence that the appellant was beaten, tortured or subjected to any third degree method. The appellant has not come in the witness box to substantiate the plea taken in her application. Moreover, had she been subjected to torture and use of third degree method, she would have complained to the Magistrate at the time when she was produced before him for the first time. Besides the confessional statement of the appellant, there was ample evidence on record to prove the case of prosecution - 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. Out of 10 years sentence awarded to the appellant she has already served more than 9 years, she is not involved in any other case as such, liberal view be taken. As regards the minimum sentence awarded to the appellant and the fine imposed upon her, the same is the minimum sentence prescribed under that section. There is no enabling provision to Court for reduction of sentence by giving special or adequate reasons. Hence, plea as to reduction of sentence would not be tenable. As per the nominal roll dated 22.04.2015, the appellant has already served a sentence of 9 years 6 months 24 days leaving behind the unexpired portion of sentence of 5 months and 6 days. No previous involvement has been reported, her conduct has been reported to be satisfactory. Under the circumstances, while maintaining the quantum of fine of ₹ 1 lac, the default sentence of six months is reduced to one month simple imprisonment. - Decided partly in favour of appellant.
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