New Delhi: The Supreme Court has burrowed through the labyrinth that Section 50 of the NDPS Act is and ruled that the section was applicable only in the case of personal search. The section has been argued before courts before and in this particular case the search was of a bag and not the person concerned – a priest – hence the special part of the section in which the accused has to be produced before a gazetted officer or a magistrate was not applicable.
The court affirmed the conviction of the accused in this case. The accused had argued that those special accents of the section were not adhered to while the search was being carried out of contraband.
The accused complained that the samples were handed over to an officer who then gave it to another officer for carrying it to the Central Laboratory in Delhi. The accused said that the seals were removed by the Director and as such the chances of tampering with the contents of the bag could not be ruled out. That made the case of the prosecution unnatural and improbable, argued the accused.
The trial court had acquitted the accused on this ground. The high court later set aside that acquittal and had convicted the accused.
The bench of Justices Ashok Bhushan, R. Subhash Reddy and M.R. Shah referred to a three judge bench judgment in State of H.P. v. Pawan Kumar which considered the issue whether the search of any “person” would also apply to any bag, briefcase etc being carried by him.
That judgment said:
“As rightly held by the High Court, this Court in the case of State of H.P. v. Pawan Kumar has held that Section 50 of the NDPS Act is applicable only in the case of personal search, as such, there is no basis for the findings recorded by the trial court that there was non-compliance of provision under Section 50 of the NDPS Act.”
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In this case the bag was on the counter of a dhaba which was constructed on the land owned by the wife of the accused, near the temple where he was priest. Caras was recovered from the gunny bag. What was established was that accused not only had direct physical control over charas, he also had the knowledge of its presence and character, the court observed.
Considering this and other evidences and rulings, the top court upheld the high court’s judgment.
Read the order here;
9305_2013_35_1502_23965_Judgement_15-Sep-2020-India Legal Bureau