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2015 (5) TMI 442 - DELHI HIGH COURT

2015 (5) TMI 442 - DELHI HIGH COURT - TMI - Conviction 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 .....

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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 .....

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tion 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 s .....

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one month simple imprisonment. - Decided partly in favour of appellant. - Crl A No. 590/2012 & Crl MB No. 950/2012, Crl MA No. 16993/2012 - Dated:- 28-4-2015 - Sunita Gupta,J. For the Petitioner : Ms Sunita Arora & Mr Krishan Kumar, Advs. For the Respondents : Mr Satish Aggarwala & Mr Amish Aggarwala , Advs. JUDGMENT Sunita Gupta,J. 1. The appellant Mankhanching Tombing impugns the judgment and order on sentence dated 07.04.2012 passed by learned Special Judge ( NDPS ), South & South .....

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The search of her personal luggage resulted in recovery of 1.459 kgs of heroin. After completing the procedural formalities, the representative samples of the contraband were sent for chemical analysis, which on analysis, were found to be heroin. Prosecution relied upon the evidence of PW-1 Madan Kumar, Intelligence Officer who received the information and reduced the same into writing as Ex.PW1 /A, PW-2 Sh.B.K.Banerjee , Appraiser in DRI who issued the seal of DRI to the Investigating Officer o .....

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nd substance from her baggage and various aspects connected with the investigation of the case. PW-4 Sh.R.P.Meena , Assistant Chemical Examiner, CRCL who analysed the samples and proved the test report as Ex.PW4 /B. PW-5 Sh.R.S.Kashyap with whom the case property was deposited by the Investigating Officer. PW-6 Ms.Kanwaljit Bakshi , Intelligence Officer of DRI who remained present at the time of recording of statements Ex.PW3 /F and Ex.PW3 /G under Section 67 of the NDPS Act of the accused. She .....

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r action in the matter. 3. The learned Special Judge on appreciation of evidence on record accepted the prosecution case and convicted and sentenced the appellant, as indicated above. The legality and validity of the impugned judgment was challenged by learned counsel for the appellant primarily on the following grounds: (i) The notice under Section 50 of NDPS Act served upon the appellant was defective and not in accordance with the provisions of NDPS Act. Section 50 of NDPS Act confers a statu .....

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sthan, (2013) 2 SCC 67 ; State of Delhi vs. Ram Avtar @ Rama, (2011) 12 SCC 207 ; Gujrant Singh @ Janta vs. State of Punjab, 2013 (13) SCALE 295. Due to non-compliance of provisions of Section 50 of NDPS Act, the appellant is entitled to acquittal. (ii) The seal after use was not handed over to any independent witness despite they being present at the time of search and seizure which creates doubt in the prosecution story. Reliance was placed on Eze Val Lkeke alias Val Eze vs. Narcotic Control B .....

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utting the submissions of learned counsel for the appellant, learned counsel for DRI submitted: (i) It was not disputed that the provisions of Section 50 of NDPS Act are mandatory and mere giving option to the accused is not sufficient. He has to be informed of his right that he can be searched by a Gazetted Officer or a Magistrate however, such a requirement is imperative only when person of the accused is to be searched. No notice is required to be given when the belongings are to be searched. .....

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dependent witness is of no consequence in as much as the sealing system is different in the case of DRI than the one when investigation is carried out by the police officials . Moreover, the paper slip was also signed by the accused as such, there was no possibility of tampering with the case property. Reliance was placed on Siddiqua vs. NCB , 2007(1) JCC (Narcotics) 22 and Namdi Francis Nwazor vs NCB , 1994 (1) Crimes 579. (iii) As regards contradiction in the testimony of the witnesses, it was .....

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idence of the appellant having actually been beaten, tortured so as to arrive at a conclusion that the statement was not made voluntarily. Reliance was placed on Kanhiya Lal vs. Union of India, AIR 2008 (SC) 1044. (v) As regards pronouncement of the judgement and sentence on the same day, it was submitted that no prejudice is caused to the appellant as the minimum sentence prescribed under the Act has been awarded to the appellant. 5. I have given my considerable thoughts to the respective submi .....

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to get her searched as well as search of her baggage conducted before a Gazetted Officer or a Magistrate. Only an option was given to the accused for getting the search conducted in the presence of aforesaid officers. It does not meet the requirement of law. 7. It was rightly not disputed by learned counsel for the respondent 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 lega .....

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as 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) 3 SCC 746 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 a .....

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CC 345 - LB have concluded in para 57: "(I) When search and seizure is to be conducted under the provisions of the Act, it is imperative for him to inform the person concerned of his right of being taken to the nearest gazetted officer or the nearest Magistrate for making search. (II) Failure to inform the accused of such right would cause prejudice to an accused. (III) That a search made by an empowered officer, on prior information, without informing the accused of such a right may not vi .....

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ction 50 of the Act have been duly observed would have to be determined by the court on the basis of the evidence at the trial and without giving an opportunity to the prosecution to establish the compliance of Section 50 of the Act would not be permissible as it would cut short a criminal trial. (VI) That the non-compliance of the procedure i.e. informing the accused of the right under Sub-section (1) of Section50 may render the recovery of contraband suspect and conviction and sentence of an a .....

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ceedings initiated under the Act. We find no merit in the contention of the learned Counsel. It requires to be noticed that the question of compliance or non-compliance with Section 50 of the NDPS Act is relevant only where search of a person is involved and the said section is not applicable nor attracted where no search of a person is involved. Search and recovery from a bag, briefcase, container, etc. does not come within the ambit of Section 50 of the NDPS Act, because firstly, Section 50 ex .....

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of a vehicle or a container or a bag or premises (see Kalema Tumba v. State of Maharashtra (1999) 8 SCC 257, State of Punjab v. Baldev Singh (1999) 6 SCC 172 and Gurbax Singh v. State of Haryana (2001) 3 SCC 28. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case . Above being the position, the contention re .....

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ber of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, agathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shou .....

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bserved: "27..........In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag which was being carried by the accused." 9. In view of the above, Section 50 of the Act has no application to the facts and circumstances of the present case as heroin was allegedly recovered from the bag which was being carried by the accused. That being so, judgments relied upon by .....

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NDPS Act for handing over of the seal by the Investigating officer after use to some independent witness. An investigating officer has to do investigation day out and day in, in several cases. It is not that after every recovery, a new seal has to be got prepared by the investigating officer and the old seal is to be discarded. The Court cannot consider some imaginary doubts as the basis of attack on a judgment. It is not the stand of the counsel for the appellant that the seal was misused by t .....

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earned trial court when the case property was produced in the court. Similarly, when the samples were received by the CRCL , the seals were found intact with the paper slips. There is another factor. The samples in this case were sent to CRCL on the very next day i.e. on 26th March, 1998. Any possibility of tampering the seals, therefore, stands ruled out." 11. In Namdi Francis Nwazor vs. NCB , 1994(1) crimes 579 also similar plea was taken which was held to be not tenable in view of the fa .....

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property was never tampered with in as much as after the search when the contraband article was recovered from the bag in the presence of two independent witnesses, the sealing process was carried out. A paper slip was affixed which not only bore the signatures of the Investigating Officer, two independent witnesses but also the accused. The aforesaid paper slips appended on samples were found intact by the learned Trial Court when the case property was produced in the court. Similarly, when the .....

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discrepancy is likely to occur. In case discrepancy does not materially affect the case of the prosecution, it has to be ignored. Minor discrepancies are bound to occur in the testimony of different witnesses and the testimony of a witness cannot be rejected on the ground that there are minor discrepancies or contradictions. Perusal of the testimony of the relevant witnesses goes to show that on the material aspect all the witnesses have corroborated the testimony of each other. It is one of th .....

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t;39. The legal position with regard to a statement made by an accused U/S 67 of the NDPS Act is now that such a statement is admissible in evidence and can be acted upon if the same is found to be made voluntarily. Earlier the view of the higher courts had been that if such a statement of an accused is found to be voluntary then the same can be made the sole basis of conviction of the accused, but if the same is not voluntary then the same is only a waste paper. To find out if such a statement .....

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e Act. 40. However, the view which has subsequently developed is that the court must look for some independent corroboration and conviction should not be based solely on a statement U/S 67 of the NDPS Act of the accused and that too when the same has already been retracted. Reference in this regard can be made to the judgments in the cases of Noor Agah vs. State of Punjab & Anr ., 2008 (3) JCC (Narcotics) 135; Union of India vs. Bal Mukund & Ors ., 2009 (2) Crimes 171 (SC) and NCB vs. Az .....

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she was feeling tired, on her request the recording of her further statement was deferred till next date. In continuation of her above statement Ex.PW3 /F, one more statement of her Ex.PW3 /G dated 28.09.2005 was also recorded next morning and it is in this statement that she had admitted her apprehension by the DRI Officers from the above Airport and the recovery of the above contraband substance from her baggage and had also stated specifically as to the circumstances under which she was carr .....

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t was directed to be placed on record. However, there is nothing on record to show that any copy thereof was supplied to Ld SPP for DRI for filing any reply to the same and the reply of the DRI to the above retraction application was only filed on 06.07.2011, when during an inspection of the case file the above retraction of the accused had come to their knowledge. In any case, the above reply of the DRI is also to be considered by this court. 43. In the above retraction application, the accused .....

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tatements, there is nothing on record to suggest or infer the use of any force, pressure or other compulsive means by the DRI officers to force the accused to make such confessional statements. Rather, her personal details disclosed in the above statement Ex.PW3 /F by the accused in her own handwriting are suggestive of the voluntariness of the same and the above retraction of the accused is found to be belated as the same had not been made at the first instance or the initial opportunity. 45. A .....

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ial on record to substantiate the claim of the accused regarding the exercise of any physical or mental torture upon her by the DRI Officers for forcing her to make the above statements. Rather, the voluntariness of the above statements stands also proved on record from the depositions made by PW6 Ms Kanwaljit Bakshi , who had remained present throughout during the recording of the above statements of the accused before the IO/ PW3 ." 14. The aforesaid findings of the learned Trial Court do .....

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vidence on record to prove the case of prosecution. 15. As regards last limb of the argument that judgment and the sentence stands vitiated in as much as the same were pronounced on the same day for which reliance was placed on Matloob vs. State (Delhi Administration) (supra), this submission is without substance in as much as in Matloob (supra), the appellant was convicted for offence under Section 20 of NDPS Act the minimum sentence prescribed was 10 years and fine of Rs . 1 lac which could ha .....

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