In a decision concerning the interpretation of
section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS
Act”), it has been held by the Supreme Court of India (“Supreme Court”) that the
provision should not be dealt by the courts in a lightly manner. Section 50 of
the NDPS Act provides for the search to be conducted in the presence of a
Gazetted Officer or a Magistrate. In the present case, it was contended by the
appellant, Gurjan Singh, that the search of the impugned gunny bags was not
conducted in the presence of a Gazetted Officer. Rather, it was conducted in
the presence of an ‘acting DPS’, who cannot be equated with a Gazetted Officer.
In this post, I am highlighted the important facts, contentions and findings of
the court.
Facts:
On 04.04.1996, after catching the appellant with some suspected gunny bags in a
tractor, S.I. Darbara Singh (P.W. 6) informed the appellant of his intention to
check the bags. P.W. 6 also told the appellant if the latter wants, the search
could be conducted in front a Gazetted Officer. When the appellant consented
for search in front of a Gazetted Officer, Baldev Singh (P.W. 3), acting DSP, was called. In front of
Baldev Singh, the search was conducted and poppy husk was recovered from the
gunny bags. Accordingly, proceedings were initiated against the appellant.
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, P.W. 3
was not a Gazetted Officer since as he was as not a regularly promoted D.S.P.
but was only an Inspector in the category of Own Rank Pay. Rejecting this, trail
court held that there was no need to
comply with section 50 of the NDPS Act. The appellant was therefore found guilty
by the trial court. [Reliance was
placed on State of Punjab vs. Balbir Singh,
(1994) 3 SCC 299]. On appeal, the decision of the trail court was confirmed
by the High Court.
Name
of the Case: Gurjant Singh @ Janta v. State of
Punjab, Criminal Appeal No. 1868 of 2013, Judgment dated October 28, 2013
Relevant
Legislations: Narcotic Drugs and Psychotropic Substances
Act, 1985
Bench:
Division – Justice S.S. Nijjar and Justice F.M. Ibrahim Kalifulla
Contentions:
Before the Supreme Court, it was again contended on behalf of the appellant that,
since P.W. 3 was not a Gazetted Officer, there was non-compliance of Section 50
in the matter of search. Hence, conviction imposed on the appellant cannot be
sustained. On the other hand, it was contended on behalf of the respondent that
the order of the High Court was corrected and does not deserve interference.
Findings
of the Court:
Holding that the decision of the trail court, as
affirmed by the High Court, was not correct, Supreme Court was of the opinion
that the requirement under section 50 of the NDPS Act cannot be considered as a
mere formality. For reaching its conclusion, the trail court had relied on the
decision of Balbir Singh (supra).
According the Supreme Court, the reliance was not appropriate. In Balbir Singh
(supra), it was held that an application of section of section 50 is not
necessary where a police officer, without
any prior information, makes a search or arrests a person. Hence, according
to the Supreme Court, question of not applying section 50 of NDPS would arise
only when the concerned police officer conducts arrest, search and seizure in
the absence of information that any offence punishable under NDPS Act has been
committed. Along with this legal position, in Balbir Singh (supra), the
importance of section 50 was also highlighted.
Distinguishing the facts of Balbir Singh (supra), Supreme Court opined that, in the present
case, police officer had felt the need to comply with section 50 of the NDPS
Act. Hence, the application of section 50 cannot be ignored. As per the factual
situation, police officer, while conducting the search of gunny bags, had asked
the appellant as to whether he required the presence of a Gazetted Officer. The
police officer asked this only when he
felt the need of invoking section 50.
Accordingly, it was held that trail court had
wrongly held that section 42 and 50 of the NDPS Act are not applicable to the
case. Having referred to the judgments of Baldev
Singh (supra) and State of H.P. vs.
Pawan Kumar, (2005) 4 SCC 350, the court highlighted the importance of
section 50 thereby holding that:
“.........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.....”
The present appeal was ultimately allowed by the
Supreme Court and the order of the High Court was set aside.
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