DAYALU KASHYAPversusTHE STATE OF CHHATTISGARH

1020            SUPREME COURT
                          [2022]REPORTS
                                 1 S.C.R. 1020             [2022] 1 S.C.R.


 A                            DAYALU KASHYAP
                                        v.
                       THE STATE OF CHHATTISGARH
                         (Criminal Appeal No. 130/2022)
 B                             JANUARY 25, 2022
          [SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
             Narcotics Drugs and Psychotropic Substances Act,1985 – s.50
       – Effect of – Search conducted by Sub-Inspector and not by a
       Gazetted Officer or Magistrate, recovery of ganja from a polythene
 C
       bag on a Kanwad carried by appellant – Appellant convicted u/
       s.20(b)(ii)(c), NDPS Act – Relying on State of Rajasthan v. Parmanand
       & Anr. [2014] 3 SCR 522 and seeking to expand the scope of the
       observations made, the appellant contended that the option given
       to him to get himself searched from the Officer concerned not being
 D     part of the statute, the same could not have been offered to him and
       thus, if the personal search is vitiated by violation of s.50, the
       recovery madeotherwise also would stand vitiated and thus, cannot
       be relied upon – Held: Such an extended view cannot be given –
       Recovery of ganja was from a polythene bag which was being carried
       on a Kanwad – The recovery was not in person – Relief not granted
 E
       to the appellant – However, since the appellant had already
       undergone 10 years of sentence and served about six months in the
       alternative sentence of one year for non-payment of fine, the
       sentence of one year against non-payment of fine was substitutedby
       the sentence of about six months and the appellant was already set
 F     free.
             State of Rajasthan v. Parmanand & Anr. (2014) 5 SCC
             345 : [2014] 3 SCR 522; State of Punjab v. Baldev
             Singh 1999 (6) SCC 172 : [1999] 3 SCR 977 –
             referred to.
 G                            Case Law Reference
       [2014] 3 SCR 522               referred to                  Para 4
       [1999] 3 SCR 977               referred to                  Para 4

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                                       1020
       DAYALU KASHYAP v. THE STATE OF CHHATTISGARH                           1021


      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                       A
No. 130 of 2022.
      From the Judgment and Order dated 28.03.2019 of the High Court
of Chhattisgarh, Bilaspur in CRA No.857 of 2011.
      Devansh A. Mohta (AC), Adv. for the Appellant.
                                                                             B
      Sumeer Sodhi, Gaurav, Advs. for the Respondent.
      The following Order of the Court was passed:
                                ORDER
      1. Leave granted.                                                      C
       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 wooden
Kanwad from Bhaisabeda to Pithapur for transportation. The appellant         D
was charged under the Narcotics Drugs and Psychotropic Substances
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       E
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 matter, on        F
01.03.2021, we noticed that the only point which really arose for
consideration was from the effect of provisions of Section 50 of the
NDPS Act. Since the petitioner had already undergone 10 years of
sentence and served about six months in the alternative sentence of one
year for non-payment of fine, we considered appropriate to substitute        G
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
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1022            SUPREME COURT REPORTS                           [2022] 1 S.C.R.


 A     testimony of the Officer (PW-5) carrying out the search. Para 6 of the
       testimony reads as under:
              “6. Thereafter, on the spot, at the side of Pithapur Thothapada
             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
 B           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
 C
             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 found
 D           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 were
             found inside both the polythene bundles. Search Memo is Exhibit
 E
             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 the 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 protection
 F
       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
 G     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 illicit 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
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        DAYALU KASHYAP v. THE STATE OF CHHATTISGARH                             1023


articles recovered from his person. The third option stated to be given to      A
the accused to get himself searched from the Officer concerned 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. The                 B
recovery was not in person. Learned counsel seeks to expand the scope
of the observations made by seeking to contend that if the personal
search is vitiated by violation of Section 50 of the NDPS Act, the recovery
made otherwise also would stand vitiated and thus, cannot be relied
upon. We cannot give such an extended view as is sought to be contended
by learned counsel for the appellant.                                           C

      7. The aforesaid being the only aspect for consideration, we are
not inclined to grant relief to the appellant and appeal is accordingly
dismissed leaving parties to bear their own costs.

                                                                                D
Divya Pandey                                                Appeal dismissed.
(Assisted by : Deepak Panwar, LCRA)




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