No Conviction Under NDPS Can Be Maintained In Case Of Infraction Of Section 50 Of The Act: H.P HC
The Himachal Pradesh High Court recently set aside the conviction of the Appellant holding that the investigating officer did not follow compulsory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
While observing that provisions of Section 50 were not complied with as the cannabis was recovered before the Appellant was presented to the Tehsildar, a Single Judge Bench of Justice Jyotsna Rewal Dua stated that “It cannot be ruled out that consent memo & seizure memo were prepared thereafter. Irrespective of the place of preparation of these documents, the entire case of the prosecution of effecting recovery of cannabis from the appellant in the office of Tehsildar becomes doubtful. The benefit of this serious doubt has to be accorded to the appellant.”
Advocate Amar Deep Singh appeared for the Appellant, whereas Additional Advocate General Y.P.S. Dhaulta appeared for the Respondents.
In the background of the case, the Appellant was arrested under Section 20 of the NDPS Act and was convicted, and sentenced to undergo rigorous imprisonment of one year along with a fine. Hence, the appeal contending that strict provisions of Section 50 of the NDPS Act which require consent to be taken on the ‘spot’ before the accused agrees to be searched in the presence of the Magistrate were not followed.
After considering the submission, the High Court examined Section 50 of the NDPS Act, which requires that consent has to be taken before the accused is searched and the search and seizure has to be conducted in the presence of the Magistrate.
The High Court referred to the decision in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat [2011 (1) SCC 609], in which it was held that “failure to comply with the provision of Section 50 would render the recovery of illicit article suspect and vitiate the conviction if the same is recorded only based on the recovery of the illicit article from the person of the accused during such search”.
The Bench noted that the statement of I.O. leads to a positive inference that the alleged recovery of cannabis was affected on the spot itself, and that being the case, necessary corollary is that the alleged recovery was made before apprising the Appellant of his right to be searched before a Magistrate or Gazetted Officer.
Finding that the Appellant has been able to show infraction of provisions of Section 50 of the NDPS Act and the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt, the Bench said that the benefit of the serious doubts in prosecution case must go in favour of the Appellant.
Therefore, noting that there are contradictions between bulk recovered and parcels sent for examination, the High Court set-aside the conviction.
Cause Title: Sandeep Kumar v. State of Himachal Pradesh
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