Compliance of Section 50 of NDPS Act is not mandated, if in search of motor cycle at public place, seizure of contraband was made: SC

Read Judgment: Kallu Khan vs. State of Rajasthan 

Pakaj Bajpai

New Delhi, December 13,2021: The Supreme Court has opined that compliance of the provision of Section 50 of NDPS Act does not have to be followed mandatorily, if in the search of motor cycle at public place, the seizure of contraband was made. 

A Division Bench of Justice Indira Banerjee and Justice J.K. Maheshwari observed that in the facts of the case at hand, where the search and seizure was made from the vehicle used, by way of chance recovery from public road, the provisions of Section 43 of the NDPS Act would apply. 

The observation came pursuant to an appeal arising out of the judgment passed by Rajasthan High Court (Jaipur Bench), whereby, the order passed by Special Judge (N.D.P.S.), Jhalawar, Rajasthan convicting Kallu Khan (Appellant) u/s 8 & 21 of Narcotic Drugs and Psychotropic Substance Act (NDPS Act) and sentenced to undergo rigorous imprisonment for 10 years along with fine of Rs. 1,00,000/- stood affirmed. The High Court also said that it was a case of chance recovery while the accused in transit was suspected by the police patrolling party on a public road, hence, recovery proceedings would be governed by Section 43 of NDPS Act. Nonetheless, the High Court reduced the default sentence from two years without disturbing the findings of conviction and main sentence.

After considering the arguments, the Top Court noted that any officer of any of the departments specified u/s 42 of NDPS Act, 1985, having power of seizure and arrest, may detain in search any person whom he has reason to believe that he has committed an offence punishable under the provisions of the NDPS Act, in case the possession of the narcotic drug or psychotropic substance appears to be unlawful.  

Reverting to the contention that the motor cycle seized in commission of offence does not belong to accused, the Top Court however observed that seizure of the contraband from the motor cycle cannot be connected to prove the guilt of accused. 

“The Trial Court on appraisal of the testimony of witnesses, Constable Preetam Singh (PW1), Constable Sardar Singh (PW2), S.I. Pranveer Singh (PW6) and Constable Rajendra Prasad (PW8), who were members of the patrolling team and the witnesses of the seizure, proved beyond reasonable doubt, when they were on patrolling, the appellant came driving the seized vehicle from opposite side. On seeing the police vehicle, he had taken back the motor cycle which he was riding. However, the police team apprehended and intercepted the accused and made the search of vehicle, in which the seized contraband smack was found beneath the seat of the vehicle. However, while making search at public place, the contraband was seized from the motor cycle driven by the accused. Thus, recovery of the contraband from the motor cycle of the appellant was a chance recovery on a public road”, observed the Division Bench. 

Speaking for the Bench, Justice Maheshwari stated that the arguments advanced by the appellant regarding noncompliance of Section 50 of NDPS Act was bereft of any merit because no recovery of contraband from the person of the accused had been made to which compliance of the provision of Section 50 NDPS Act had to follow mandatorily. 

In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed, and therefore, compliance of Section 50 does not attract in the present case, added Justice Maheshwari.

Hence, the Apex Court dismissed the appeal and concluded that the findings concurrently recorded by the Courts holding the accused guilty for the charges and to direct him to undergo sentence as prescribed, do not suffer from any perversity, illegality, warranting interference.