Compliance of Sec.50 of NDPS Act is mandated in case of personal search but not in case of vehicle, reiterates P&H HC

Read Order: Balkar Singh @ Kaka v. State of Punjab

Monika Rahar

Chandigarh, January 11, 2022: While dealing with an appeal against conviction in a case pertaining to the NDPS Act, the Punjab and Haryana High Court has referred to the decision of the Supreme Court in  State of Punjab vs. Baljinder Singh and reiterated that the need for compliance of Section 50 arises only in cases where personal search of the accused concerned is conducted and not when the search is of a vehicle. 

The bench of Justice Ritu Bahri and Justice Ashok Kumar Verma also reiterated the settled legal position which is to the effect that the non-examination of independent witnesses cannot be a sole determinant for doubting prosecution’s case. 

In the case at hand, a team of police officials was on duty when they saw the accused-appellants escaping with their car. On inspection of the said car, six bags containing narcotic substances were recovered and the accused-appellants were apprehended on the spot while their co-accused who managed to escape was arrested later. 

They were tried under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985. Finding the appellants guilty, the trial court sentenced them to undergo rigorous imprisonment for a period of 11 years and to pay a certain amount as fine. However, their co-accused was acquitted. Hence, the present appeals were filed against these conviction orders.  

It was the case of the appellants’ counsel that the appellants were falsely implicated and that the contraband was recovered from the car which did not belong to them. It was also argued that the mandatory provisions of Section 50 of the NDPS Act were not complied with and no independent witness was examined during the trial. 

Further, regarding the quantum of sentence, it was argued that the minimum term provided for under Section 15 of the Act was 10 years and since imprisonment for a term of of 11 years was granted in present case, the Trial Court should have taken into consideration the factors mentioned in Section 32B of the Act and should have also assigned reasons while imposing a punishment which was higher than the minimum term prescribed. 

Per contra, the State counsel argued in favor of appellants’ conviction and sentence. He stated that cogent evidence on record was available to show that the appellants were involved in the commission of the offence under the NDPS Act. 

Regarding appellants’ argument about non-compliance of Section 50 of the Act, the Court reiterated Supreme Court’s verdict in State of Punjab vs. Baljinder Singh, wherein it was observed that in case of personal search only, the provisions of Section 50 of the NDPS Act is required to be complied with but not in the case of vehicle. 

Citing this legal position, it was observed by the Court that even though a vehicle was searched in the present case, ASI Mohan (who was part of the team which apprehended the accused- appellants) apprised the accused- appellants of their right under Section 50 of the Act to get themselves searched in the presence of some Gazatted Officer or a Magistrate but they reposed full faith in him and had allowed him to conduct search. Thus, the Court found this argument of the appellants to be baseless. 

Further, regarding non-examination of independent witnesses, the Court referred to the Supreme Court’s decision in Surinder Kumar v. State of Punjab wherein it was held that merely because independent witnesses were not examined, the conclusion could not be drawn that the accused was falsely implicated. 

Applying this ruling to the present case, the Court said, “Therefore, the said issue is also well settled and in particular, looking to the facts of the present case, when the conduct of the accused was found suspicious and a chance recovery from the vehicle used by them is made from public place and proved beyond reasonable doubt, the appellants cannot avail any benefit on this issue.”  

Lastly, on quantum of punishment, the Court said that keeping in view the provisions of Section 32B of the Act and the circumstances of the present case, the rigorous imprisonment of 11 years awarded to the appellants under Section 15 of the Act was on the higher side. Thus, the Court reduced the sentence to 10 years while keeping the imposition of fine intact. 

Thus, barring the modification regarding quantum of sentence, the appeals were dismissed.