MAHINDER SINGH Vs. STATE

JUDGEMENT

(1.) By the impugned judgment dated 24th August, 2001 passed by the learned Special Court, the Appellants in the above captioned two Appeals have been convicted for the offences punishable under Sections 21 and 29 of NDPS Act and directed to undergo rigorous imprisonment for a period of ten years and a fine of '1 lakh for offence under Section 21 NDPS Act and rigorous Imprisonment for a period of ten years and fine of '1 lakh for offence punishable under Section 29 NDPS Act, and in default of payment of the amount of fine to further undergo simple imprisonment for one year in each of the offences under Section 21 and 29 NDPS Act.

(2.) Briefly the prosecution case is that on 7th February, 2000 at about 4.00 P.M. at PS Narcotic Branch, Kamla Market information was received with regard to Appellant Kamal resident of Multani Dhanda indulging in the business of narcotic (smack) supply in Gali No. 6, Near Multani Dhanda. This information was recorded vide DD No. 24 exhibited as Ex. PW9/A by PW9 SI Prem Chand. This information was conveyed to the SHO Inspector Sahib Singh who passed on the said information to ACP M.D. Mehta on telephone who directed to conduct the raid immediately. On the direction from the SHO, SI Prem Chand constituted a raiding party consisting of HC Nar Singh PW5, HC Bhagwat Dayal, Constable Luder Mani PW3, Constable Gajender and lady Constable Nirmala, which departed vide DD No. 25, Ex.PW9/B. On reaching Multani Dhanda PW9 requested 4/5 public persons to join the raiding party but none agreed. HC Sube Din and Constable Deepak Tyagi of PS Nabi Karim who were on patrolling joined the raiding party and Nakabandi was done at Gali No. 6, Multani Dhanda. At about 5.10 p.m. at the pointing of secret informer, Appellant Kamal was apprehended from outside Talwar Jewellers, and thereafter SI Prem Chand informed the Appellant Kamal that they had a secret information that he was in possession of smack and for that purpose if he so desired his search could be conducted before a Magistrate or a Gazetted Officer and a notice under Section 50 of the NDPS Act was served on the Appellant. However he declined. SI Prem Chand offered the Appellant Kamal to take his search, which the Appellant declined. SI Prem Chand took search of Appellant Kamal and 10 small polythene packets containing brown coloured powder were recovered, which on checking were found to be smack. Contents of all the 10 polythenes were put together and on weighment the total weight came out to be 100 grams, out of which two samples of 10 grams each were separated and converted into two separate parcels marked "A" and "B" and the remaining smack and ten empty polythene were converted into separate parcel given the Mark "C". The said parcels were sealed with the seal of PCK and seal after use was handed over to PW5. Thereafter other proceedings of writing the seizure memos, filling of forms CFSL were conducted. On the disclosure statement made by the Appellant Kamal vide Ex.PW5/D, it was revealed that he used to purchase smack from the Appellant Mahinder. He led the police party to House No. 8003, Gali No. 10, Multani Dhanda and on his pointing out the Appellant Mahinder was apprehended outside his house. Appellant Mahinder was apprised of the disclosure statement of accused Kamal and was served a notice under Section 50 of NDPS Act, Ex.PW5/H. SI Dasrath Singh gave him the option of being searched in presence of a Magistrate or a Gazetted Officer if he so desired. This option was declined by the Appellant. SI Dasrath before taking his search offered his own search which was also declined by the Appellant Mahinder and on the search conducted by SI Dasrath Singh from the right side pocket of his pant, 10 polythene packets containing brown coloured smack was recovered. Smack was taken out from those packets and weighed. The total weight came out to be 100 grams, out of which 2 samples of 10 grams each were separated and converted into different parcels; marked as "D" and "E". The remaining smack with 10 empty polythenes, recovered from the accused, was converted into another parcel and marked as "F". The said parcels were sealed with the seal of DS. The witnesses were examined and the abovementioned notices and documents were exhibited where after both the Appellants have been convicted and sentenced as mentioned above.

(3.) Learned counsel for the Appellant contends that the Appellants are entitled to be acquitted on the short ground that the Section 50 notice served on the Appellant is not in terms of the provisions of the Act and as per the law laid down by the Hon'ble Supreme Court. It is contended that in K. Mohanan vs. State of Kerala, 2000 SCC(Cri) 1228 the Hon'ble Supreme Court has held that as per the mandate of Section 50 if the accused who is subjected to search is merely asked whether he is required to be searched in the presence of a Magistrate or a Gazetted Officer it cannot be treated to be communicating to him that he had a right under law to be searched so. It is contended that neither does the Section 50 notice nor the testimony of PW9 SI Prem Chand and PW11 SI Dasrath Singh who are the Investigating Officer suggests that the Appellants were informed of any such right.