Punjab & Haryana High Court Sets Aside Conviction In Drugs Case, Says Compliance Of Section 50 Of NDPS Act Not Made

The Punjab and Haryana High Court has observed that since the Narcotic Drugs and Psychotropic Substances (NDPS) Act has provisions for stringent punishment, the standard of investigation is also required to be meeting all those parameters.

“There is no gainsaying that NDPS Act is a special Act and has the provisions for the stringent punishment. Hence, the standard of investigation is also required to be meeting all those parameters, which rule out the false implication of an innocent citizen,” Justice Rajesh Bhardwaj observed, while acquitting a convict in a drugs case. 

The court also noted that when a search is made from the body of the accused, compliance of Section 50 NDPS Act is imperative in nature. Section 50 of the NDPS Act prescribes conditions under which a search on a person should be conducted.

"Hon'ble Supreme Court has settled the law by holding that in case of the search of the body of the accused, compliance of Section 50 of NDPS Act is imperative in nature," the court said.

Background

When SI Mohan Singh, along with HC Kulwant Singh, Constable Sharandeep, and Constable Ajay, were on patrol duty in Chandigarh on February 12 in 2014, they set up a checkpoint at the turn of Rehri Market in Sector 41 to address the increasing incidents of theft and snatching in the city.

Around 6 pm, the police team intercepted an individual who appeared suspicious as he approached from Sector 41-42. Upon spotting the police party, the person became agitated and attempted to retreat. Acting on their suspicion, the officers apprehended him. During the apprehension, the person allegedly pulled out a polythene bag from his right pocket and tried to discard it. However, SI Mohan Singh quickly restrained him, preventing the disposal of the bag.

Upon inspecting the polythene bag, 10 grams of heroin were allegedly recovered. When questioned by SI Mohan Singh, the person identified himself as Harjit Singh. However, he could not produce any license or authorization for possessing the recovered contraband. The samples of the recovered contraband was also sent to the Central Forensic Science Laboratory (CFSL) for analysis.

Subsequently, the accused, Harjit Singh, was charged with committing an offense under Section 21 of the NDPS Act and an FIR was registered against him. An investigation was initiated, resulting in the arrest of the appellant at the scene.

Following the completion of the investigation, the prosecution presented the challan and formal charges were framed against the appellant. During the trial, after the prosecution presented its evidence, the appellant's statement was recorded under Section 313 CrPc. In his statement, the appellant pleaded innocence and claimed false implication. However, he did not provide any supporting evidence in his defence.

Subsequently, the Trial Court found the prosecution successful in proving the charges against the appellant. As a result, he was convicted and sentenced under Section 21 of the NDPS Act.

Submissions

The appellant strongly argued that the evidence presented clearly shows that the investigating agency recovered the contraband from him without extending any offer under Section 50 of the NDPS Act. He emphasized that compliance with Section 50 is mandatory, particularly when the recovery is made from a search of the accused's body. Such a failure renders the conviction and sentence imposed by the Trial Court legally unsustainable.

While vehemently opposing the submissions made by the appellant, the State argued that the recovery was effected from the polythene being carried by the appellant and thus Section 50 of NDPS Act would not be attracted in this case. It was further submitted that the material contradictions as alleged by the appellant were minor in nature and not sufficient enough to discredit the prosecution’s case.

Analysis

The court noted that there is nothing on record to show that the police party made any effort to join any independent witness at the time of search of the appellant. The court further noted that the alleged contraband had been recovered from the appellant when he tried to throw away the polythene being carried by him in his pocket.

“Thus the contraband was in the hand of the appellant when it was recovered by SI Mohan Singh, PW-1. The police party did not give any offer under Section 50 of NDPS Act to the appellant,” the court said.

While placing reliance upon the judicial precedents in cases of Sanjeev Vs. State of Himachal Pradesh, 2022(2) R.C.R (Criminal) 341 and State of Rajasthan Vs. Parmanand, 2014(3) SCR 522, the court clarified that the apex court has settled the law by holding that in case of the search of the body of the accused, compliance of Section 50 of NDPS Act is imperative in nature.

In the light of the law laid down, the court opined that compliance of Section 50 of NDPS Act is imperative in nature which had not been made in the present case.

The court noted that contraband recovered from the appellant was found to be 10 grams heroin which is a non-commercial quantity, and there is nothing on record to show that the appellant has any criminal antecedents as he has never been involved in any other case of the similar nature.

“...in the case in hand, the prosecution has failed to rule out the false implication of the appellant,” the court observed, adding it has no doubt in its mind to hold that the prosecution has failed to prove its case beyond the reasonable doubt as the compliance of provisions of Section 50 of NDPS Act has not been made in this case. 

Case title:Harjeet Singh vs State of UT Chd (CRA-S-4011-SB 2017)

Present:

Mr. Suvir Sidhu, Advocate andMr. Harlove Singh Rajput, Advocate for the appellant.

Mr. Y.S. Rathore, Addl. P.P., U.T., Chandigarh assisted by Ms. Sudha Singh, Advocate.

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