NDPS Case| Fair Trial Not Conducted: Punjab & Haryana HC Acquits Kenyan Woman Who Did Not Understand Any Indian Language
The Punjab and Haryana High Court set aside a judgment of conviction under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) against a Kenyan woman noticing that she did not understand either Punjabi, Hindi or English.
The Bench noted that the conviction of the Kenyan woman (appellant) under Section 21 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of heroin was not in compliance with Section 50 of the NDPS Act as it “cast doubt on the truthfulness of the prosecution's case”.
A Single Bench of Justice Deepak Gupta observed, “Apart from above, it is not disputed that accused-appellant is from Kenya. The record does not reveal that she was aware of Hindi, Punjabi or English language. All the material documents have been prepared either in Punjabi or in English. Inspector Onkar Singh Brar admitted that he did not know as to in what language the accused signed the non-consent and consent memo…In view of the aforesaid facts and circumstances, it cannot be stated that fair trial has been conducted. The entire investigation is held to be vitiated on account of the accused not understanding any communication made to her by the police party.”
Advocate Vidit Bansal represented the appellant, while Sr. DAG Ramandeep Singh appeared for the respondent.
According to the prosecution's case, the appellant was apprehended by the police who claimed to have found 800 grams of heroin in her possession. The appellant argued that being a permanent resident of Kenya, she did not understand Punjabi, Hindi, or English, the languages in which the documents related to the case were prepared.
Discrepancies emerged regarding compliance with Section 50 of the NDPS Act, which mandates the conditions under which searches must be conducted. The appellant contended that the non-consent and consent memos were prepared after the recovery of the contraband.
“The said circumstance in itself entirely demolishes the prosecution case, as by taking the consent of the accused for being searched before a Gazetted Officer or a Magistrate, after recovery had already been effected, is just making mockery of Section 50 of the NDPS Act, because said consent is required to be taken before effecting the search,” the Court remarked.
The Court pointed out, “It is no longer res integra that it is mandatory to comply with Section 50 of the NDPS Act. There is also no ambiguity as to the manner in which Section 50 of the NDPS Act is required to be complied with. Plainly, there is no requirement to conduct the search in the presence of a Magistrate or Gazetted Officer, if the person proposed to be searched did not so desire, after being informed of his right in this regard.”
Since the police admitted that the legal documents including the memos were not explained to the appellant in her native language, considering that she did not understand any Indian language, the Court stated that a fair trial was not conducted.
Consequently, the Court set aside the judgment of conviction and directed the immediate release of the Kenyan national.
Accordingly, the High Court allowed the appeal.
Cause Title: Suzie Achayo @ Shivonje v. State of Punjab (Neutral Citation: 2024:PHHC:068647)
Appearance:
Appellant: Advocate Vidit Bansal
Respondent: Sr. DAG Ramandeep Singh
