Dayalu Kashyap v. the State of Chhattisgarh
The following Order of the Court was passed:
ORDER
1. Leave granted.
2. The present appeal arises qua an incident of 11.09.2010 of
10.30 in the morning when Sub Inspector K.S.Singh (PW-5), on the
basis of the information received, apprehended the appellant and found
that he was carrying Ganja in a green polythene bag on a w ooden
Kanwad from Bhaisabeda to Pithapur for transportation. The appellant
was charged under the Narcotics Drugs and Psychotropic Subst ances
Act, 1985 (‘NDPS Act’) and tried by the Special Judge who convicted
the appellant under Section 20(b)(ii)(c) of the NDPS Act and sentenced
him to undergo rigorous imprisonment for 10 years and to pay a fine of
Rs.1 lakh. The appellant preferred an appeal before the High Court of
Chhattisgarh but that appeal was dismissed by the impugned order dated
28.03.2019.
3. We issued notice on 01.02.2021 including on the bail application
as the appellant had undergone sentence of 10 years and his inability to
pay fine was resulting in him serving out the remaining sentence of one
year. In the course of hearing this matter with some other mat ter, on
01.03.2021, we noticed that the only point which reall y arose for
consideration was from the effect of provisions of Sect ion 50 of the
NDPS Act. Since the petitioner had already undergone 10 yea rs of
sentence and served about six months in the alternative sentence of one
year for non-payment of fine, we considered appropriate to sub stitute
the sentence of one year against non-payment of fine by the sentence of
about six months and directed the appellant to be set free. The appellant
was accordingly set free on 03.03.2021.
4. We have heard learned counsel for the appellant on the aforesaid
question posed by him. Learned counsel has drawn our attention to the
DAYALU KASHYAP v. THE STATE OF CHHATTISGARH
testimony of the Officer (PW-5) carrying out the search. P ara 6 of the
testimony reads as under:
“6. Thereafter, on the spot, at the side of Pithapur Thothapa da
Chowk, Murumroad, the accused was served notice u/s 50 of the
NDPS Act at 12.45 O’Clock that the information has been received
from the informer that the Ganja is kept at both ends of his Kanwad
for which it is necessary to conduct search. You can get the search
conducted from any Gazetted Officer, Magistrate or even by me.
The accused was explained about the meaning of Gazetted Officer
and Magistrate. Then, the accused gave verbal consent to get the
search conducted by me. The consent given for search was
recorded as dictated by the accused. The notice served by me is
Exhibit P.5 which bears my signature at part C to C. On the same
date at 13 O’ clock, at the spot itself, on getting the consent from
the accused, I got myself, accompanying staff and motorcycle
searched from the accused. No objectionable article was fou nd
in the search. Our personal search is Search Memo (Exhibit P.6)
which bears my signature at part C to C. At 13:15 O’clock, at the
spot, the green coloured polythese bundle wrapped at both ends
of Kanwad kept in the possession of accused and accused Dayalu
Kashyap were searched. Then, the article similar to Ganja wer e
found inside both the polythene bundles. Search Memo is Exhibit
P.7 which bears my signature at part C to C.”
5. Learned counsel submits that the option given to the appellant
to take a third choice other than what is prescribed as th e two choices
under sub-Section (1) of Section 50 of the Act is something which goes
contrary to the mandate of the law and in a way affects the p rotection
provided by the said Section to the accused. To support his contention,
he has relied upon the judgment of State of Rajasthan v. Parmanand
& Anr. – (2014) 5 SCC 345, more specifically, para 19. The judgment in
turn, relied upon a Constitution Bench judgment of this Court in State of
Punjab v. Baldev Singh – 1999 (6) SCC 172 to conclude that if a
search is made by an empowered Officer on prior information without
informing the person of his right that he has to be taken before a Gazetted
Officer or a Magistrate for search and in case he so opts, failure to take
his search accordingly would render the recovery of the il licit article
suspicious and vitiate the conviction and sentence of the accused where
the conviction has been recorded only the on basis of possession of illicit
1023
articles recovered from his person. The third option stated to be given to
the accused to get himself searched from the Officer conce rned not
being part of the statute, the same could not have been offered to the
appellant and thus, the recovery from him is vitiated.
6. In the conspectus of the facts of the case, we find the recovery
was in a polythene bag which was being carried on a Kanwad. Th e
recovery was not in person. Learned counsel seeks to expand the scope
of the observations made by seeking to contend that if the per sonal
search is vitiated by violation of Section 50 of the NDPS Act, the recovery
made otherwise also would stand vitiated and thus, cannot be r elied
upon. We cannot give such an extended view as is sought to be contended
by learned counsel for the appellant.
7. The aforesaid being the only aspect for consideration, we are
not inclined to grant relief to the appellant and appeal is a ccordingly
dismissed leaving parties to bear their own costs.
Divya Pandey Appeal dismissed.
(Assisted by : Deepak Panwar, LCRA)
DAYALU KASHYAP v. THE STATE OF CHHATTISGARH