SUMIT RAI Vs. STATE

JUDGEMENT

(1.) For being found in possession of 100 kg ganja (cannabis), at 7:15 AM on 27th April, 2013, the appellant Sumit Rai @ Subodh Rai stands convicted, vide judgment dated 4th March, 2015, passed by the learned Additional Sessions Judge (hereinafter referred to as the learned ASJ) under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). Consequently, vide order dated 10th March, 2015, the appellant has been sentenced, by the learned ASJ, to suffer, 10 years' rigorous imprisonment (RI) alongwith fine of Rs. 1 lakh, with default simple imprisonment of 6 months'. He has been extended the benefit of Section 428 of the Code of Criminal Procedure, 1973.

(2.) The appellant is in appeal.

(3.) The appeal of the appellant is entitled to succeed on the basis of the judgment of the Supreme Court in Arif Khan v. State of Uttarakhand, AIR 2018 SC 2123, read with Dilip v. State of M.P., (2007) 1 SCC 450 and State of Rajasthan v. Parmanand, (2014) 5 SCC 345. Seen together, these decisions mandate that the search, pursuant to which narcotics are recovered from an accused, or from the person of an accused or from the baggage carried by an accused, where the accused is also searched alongwith his baggage, Section 50 of the NDPS Act mandates that the search be necessarily carried out in the presence of a Magistrate or a Gazetted Officer, even where the accused declines the offer, made to him in that regard. In the present case, the search of the appellant was not conducted in the presence of a Gazetted Officer or a Magistrate, on the ground that the appellant had refused the offer, extended to him in that regard. The ganja, the recovery of which has led to these proceedings, was found contained in four plastic bags, being carried by the appellant. His search was conducted alongwith the search of the bags. Rigorous compliance with the mandate of Section 50 of the NDPS Act was, in these circumstances, necessary, as per the law laid down in Arif Khan (supra) - which has been followed by me in, inter alia, Deepak Shamsher Thapa v. State, 256 (2019) DLT 543, Gurteg Singh Batth v. State, 254 (2018) DLT 551 and Sikodh Mahto v. State, 2019 SCC OnLine Del 8897 inasmuch as the appellant's search was not conducted in the presence of a Magistrate or a Gazetted Officer, therefore, the search stood vitiated, and, with it, so did the alleged recovery of ganja and all the proceedings that emanated therefrom, culminating in the conviction and sentencing of the appellant.