The appeal focuses on the legal analysis by the court regarding the invalid search conducted in an NDPS case. The court emphasized the importance of complying with Section 50 of the Act when conducting searches, highlighting that any deviation can vitiate the recovery and impact the conviction. The judgment provides clarity on the rights of the accused during searches and the implications of not adhering to the statutory provisions. Stay tuned for more insights on this significant legal aspect.
Facts
- The appeal mainly concerns the arrest of the appellant on 11.09.2010 at 10:30 am while he was carrying Ganja on a wooden Kanwad from Bhaisabeda to Pithapur for transportation.
- The search was conducted by Sub Inspector K.S. Singh based on information received, with consent from the accused, leading to the discovery of Ganja in a green polythene bag.
- Personal searches were also conducted on the accused and Dayalu Kashyap, leading to the discovery of similar articles to Ganja in polythene bundles.
- A notice under Section 50 of the NDPS Act was served to the accused at 12:45 pm on the same day, informing him about the need to conduct a search based on information received from an informer.
- The appellant’s counsel raised a question regarding the search conducted by the Officer (PW-5) and highlighted that the accused gave verbal consent for the search to be conducted by the Officer.
- The appellant was subsequently released on 03.03.2021 after the search and findings.
- The search memos (Exhibit P.6 and P.7) bear the signature of the Officer at part C to C.
- The appellant was charged under the NDPS Act and sentenced to 10 years of rigorous imprisonment and a fine of Rs.1 lakh.
- The appellant served about six months in an alternative sentence for non-payment of fine.
- Considering the appellant had already undergone 10 years of sentence, the sentence for non-payment of fine was substituted to about six months.
- The appellant was directed to be set free after serving the reduced sentence.
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Arguments
- Learned counsel argues that if the personal search is not conducted in accordance with Section 50 of the NDPS Act, any recovery made would be vitiated and cannot be relied upon.
- Counsel relies on the judgment of State of Rajasthan v. Parmanand & Anr. – (2014) 5 SCC 345, particularly para 19, to support this contention.
- Counsel highlights that allowing the appellant to choose an option not specified in Section 50(1) of the Act contradicts the law and diminishes the protection offered to the accused.
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Analysis
- The judgment relied on a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh – 1999 (6) SCC 172
- It concluded that if a search is conducted by an empowered Officer based on prior information without informing the person of their right to be taken before a Gazetted Officer or a Magistrate for the search, it would render the search invalid
- Failure to inform the person of their right to request being taken before a Gazetted Officer or Magistrate and not conducting the search accordingly would render the search invalid
- The recovery of the illicit article suspicious and vitiated the conviction and sentence of the accused.
- Conviction was based solely on possession of illicit articles recovered from the accused’s person.
- The option given to the accused to get himself searched by an officer not part of the statute was not valid and thus, the recovery from him is vitiated.
- The recovery was found in a polythene bag being carried on a Kanwad, not on the person of the accused.
- The court cannot provide an extended view as requested by the appellant’s counsel.
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Decision
- The only aspect for consideration is the one mentioned above
- Relief is not granted to the appellant
- The appeal is dismissed
- Parties are left to bear their own costs
Case Title: DAYALU KASHYAP Vs. THE STATE OF CHHATTISGARH (2022 INSC 95)
Case Number: Crl.A. No.-000130-000130 / 2022
