Supreme Court of India
DAYALU KASHYAP versus THE STATE OF CHHATTISGARH on 25 January 2022
SUPREME COURT REPORTS
[2022] 1 S.C.R. 1020
[2022] 1 S.C.R.
DAYALU KASHYAP
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THE STATE OF CHHATTISGARH
(Criminal Appeal No. 130/2022)
BJANUARY 25, 2022
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Narcotics Drugs and Psychotropic Substances Act,1985 – s.50– Effect of – Search conducted by Sub-Inspector and not by aGazetted Officer or Magistrate, recovery of ganja from a polytheneCbag on a Kanwad carried by appellant – Appellant convicted u/s.20(b)(ii)(c), NDPS Act – Relying on State of Rajasthan v. Parmanand& Anr. [2014] 3 SCR 522 and seeking to expand the scope of theobservations made, the appellant contended that the option givento him to get himself searched from the Officer concerned not beingDpart of the statute, the same could not have been offered to him andthus, if the personal search is vitiated by violation of s.50, therecovery madeotherwise also would stand vitiated and thus, cannotbe relied upon – Held: Such an extended view cannot be given –Recovery of ganja was from a polythene bag which was being carriedon a Kanwad – The recovery was not in person – Relief not grantedEto the appellant – However, since the appellant had alreadyundergone 10 years of sentence and served about six months in thealternative sentence of one year for non-payment of fine, thesentence of one year against non-payment of fine was substitutedbythe sentence of about six months and the appellant was already setFfree.
State of Rajasthan v. Parmanand & Anr. (2014) 5 SCC345 : [2014] 3 SCR 522; State of Punjab v. BaldevSingh 1999 (6) SCC 172 : [1999] 3 SCR 977 –referred to.
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Case Law Reference
[2014] 3 SCR 522[1999] 3 SCR 977
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CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 130 of 2022.
From the Judgment and Order dated 28.03.2019 of the High Courtof Chhattisgarh, Bilaspur in CRA No.857 of 2011.
Devansh A. Mohta (AC), Adv. for the Appellant.
Sumeer Sodhi, Gaurav, Advs. for the Respondent.
The following Order of the Court was passed:
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ORDER
1. Leave granted.
2. The present appeal arises qua an incident of 11.09.2010 of10.30 in the morning when Sub Inspector K.S.Singh (PW-5), on thebasis of the information received, apprehended the appellant and foundthat he was carrying Ganja in a green polythene bag on a woodenKanwad from Bhaisabeda to Pithapur for transportation. The appellantwas charged under the Narcotics Drugs and Psychotropic SubstancesAct, 1985 (‘NDPS Act’) and tried by the Special Judge who convictedthe appellant under Section 20(b)(ii)(c) of the NDPS Act and sentencedhim to undergo rigorous imprisonment for 10 years and to pay a fine ofRs.1 lakh. The appellant preferred an appeal before the High Court ofChhattisgarh but that appeal was dismissed by the impugned order dated28.03.2019.
3. We issued notice on 01.02.2021 including on the bail applicationas the appellant had undergone sentence of 10 years and his inability topay fine was resulting in him serving out the remaining sentence of oneyear. In the course of hearing this matter with some other matter, on01.03.2021, we noticed that the only point which really arose forconsideration was from the effect of provisions of Section 50 of theNDPS Act. Since the petitioner had already undergone 10 years ofsentence and served about six months in the alternative sentence of oneyear for non-payment of fine, we considered appropriate to substitutethe sentence of one year against non-payment of fine by the sentence ofabout six months and directed the appellant to be set free. The appellantwas accordingly set free on 03.03.2021.
4. We have heard learned counsel for the appellant on the aforesaidquestion posed by him. Learned counsel has drawn our attention to the A
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Atestimony of the Officer (PW-5) carrying out the search. Para 6 of thetestimony reads as under:
“6. Thereafter, on the spot, at the side of Pithapur ThothapadaChowk, Murumroad, the accused was served notice u/s 50 of theNDPS Act at 12.45 O’Clock that the information has been receivedBfrom the informer that the Ganja is kept at both ends of his Kanwadfor which it is necessary to conduct search. You can get the searchconducted from any Gazetted Officer, Magistrate or even by me.The accused was explained about the meaning of Gazetted Officerand Magistrate. Then, the accused gave verbal consent to get thesearch conducted by me. The consent given for search wasCrecorded as dictated by the accused. The notice served by me isExhibit P.5 which bears my signature at part C to C. On the samedate at 13 O’ clock, at the spot itself, on getting the consent fromthe accused, I got myself, accompanying staff and motorcyclesearched from the accused. No objectionable article was foundDin the search. Our personal search is Search Memo (Exhibit P.6)which bears my signature at part C to C. At 13:15 O’clock, at thespot, the green coloured polythese bundle wrapped at both endsof Kanwad kept in the possession of accused and accused DayaluKashyap were searched. Then, the article similar to Ganja werefound inside both the polythene bundles. Search Memo is ExhibitEP.7 which bears my signature at part C to C.”
5. Learned counsel submits that the option given to the appellantto take a third choice other than what is prescribed as the two choicesunder sub-Section (1) of Section 50 of the Act is something which goescontrary to the mandate of the law and in a way affects the protectionFprovided by the said Section to the accused. To support his contention,he has relied upon the judgment of State of Rajasthan v. Parmanand& Anr. – (2014) 5 SCC 345, more specifically, para 19. The judgment inturn, relied upon a Constitution Bench judgment of this Court in State ofPunjab v. Baldev Singh – 1999 (6) SCC 172 to conclude that if aGsearch is made by an empowered Officer on prior information withoutinforming the person of his right that he has to be taken before a GazettedOfficer or a Magistrate for search and in case he so opts, failure to takehis search accordingly would render the recovery of the illicit articlesuspicious and vitiate the conviction and sentence of the accused wherethe conviction has been recorded only the on basis of possession of illicitH
articles recovered from his person. The third option stated to be given tothe accused to get himself searched from the Officer concerned notbeing part of the statute, the same could not have been offered to theappellant and thus, the recovery from him is vitiated.
6. In the conspectus of the facts of the case, we find the recoverywas in a polythene bag which was being carried on a Kanwad. Therecovery was not in person. Learned counsel seeks to expand the scopeof the observations made by seeking to contend that if the personalsearch is vitiated by violation of Section 50 of the NDPS Act, the recoverymade otherwise also would stand vitiated and thus, cannot be reliedupon. We cannot give such an extended view as is sought to be contendedby learned counsel for the appellant.
7. The aforesaid being the only aspect for consideration, we arenot inclined to grant relief to the appellant and appeal is accordinglydismissed leaving parties to bear their own costs.
Divya Pandey(Assisted by : Deepak Panwar, LCRA)
Appeal dismissed.
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