Supreme Court of India
DILBAGH SINGHversusSTATE OF PUNJAB
- Citation
- 2016 INSC 1067
- Decided
- 28 November 2016
- Disposal
- Dismissed
- Bench
- DIPAK MISRA
Holding
Section 50 does not apply to the vehicle search and the requirements of Section 57 were duly complied with, so the conviction stands.
Summary
The appellant and a co-accused were intercepted while travelling in a car and six bags of poppy husk were seized from the vehicle. The appellant challenged the conviction under the NDPS Act, contending that the investigating officers had violated Sections 50 and 57 of the Act. The Supreme Court examined whether Section 50, which governs the search of a person, applied to a vehicle search, and whether the mandatory reporting requirement of Section 57 was complied with. It held that Section 50 is inapplicable because the contraband was recovered from the car, not from the persons, and that the officers had promptly reported the arrest and seizure to their superior, satisfying Section 57. Consequently, the Court found no procedural defect that could invalidate the conviction and dismissed the appeal.
Issues considered
- Whether Section 50 of the NDPS Act applies when contraband is recovered from a vehicle rather than from a person.
- Whether the investigating officers complied with the reporting requirement of Section 57 of the NDPS Act.
- Whether any alleged non‑compliance of Sections 50 or 57 would vitiate the conviction.
Legislation cited
Subjects
NDPS ActSection 50Section 57vehicle searchprocedural complianceconvictionnarcotics seizure
Judgment
[2016] 7 S.C.R. 781
DILBAGH SINGH A
v.
STATE OF PUNJAB
(Criminal Appeal No. 1096 of 2016)
NOVEMBER 28, 2016 B
[DIPAK MISRA AND AMITAVA ROY, JJ.]
Narcotic Drugs and Psychotropic Substances Act, I985: ss.50,
57 - Applicability of - Recovery of six bags of poppy husk from
car - Conviction by courts below - Plea of non-compliance of ss.50
and 57 - Held: Since the contraband were recovered from inside
c
the car, s.50 is not applicable - As regards the applicability of
s.57, both the courts below concurrently concluded that the
Investigating Officer at the site had, after the arrest of the accused
persons and seizure of the contraband forwarded the said
information to his higher officer, namely, Deputy Superintendent of D
Police without any delay and that the related FIR with the necessary
endorsements therein had reached the Jlaka Magistrate on the same
day - There was no evidence to either contradict or decimate this
finding based on records - In this view of the matter, the requirements
of s.57 of the Act had been duly complied with as well.
E
Dismissing the appeal, the Court
HELD:l. Whereas the conditions under which, the search
as contemplated in Section 50 are limited only to the contingency
of search of any person, Section 57 prescribes that whenever any
person makes any arrest or seizure un!ler the Act, he would within F
48 hours next after such arrest or seizure, make a full report of
all the particulars of such arrest or seizure to his immediate official
superior. The contraband in the case in hand had been recovered
from inside the car in which the petitioner and the co-accused
were travelling at the relevant point of time and not in course of
the search of their person. Noticeably, it had also not been the G
plea of the defence ever that the alleged seizure according to the
accused persons had been from their person. In the contextual
facts therefo1·e, Section 50 has no application to espouse the cause
of the defence. [Para 13) [787-B-C, D-E]
H
781
782 SUPREME COURT REPORTS [2016) 7 S.C.R.
A 2. Qua the imputation of non-adherence of the requisites
of Section 57 of the Act, both the courts below, on an analytical
appreciation of the evidence on record have concurrently
concluded that the Investigating Officer at the site, had after the
arrest of the accused persons and or seizure of the contraband
forwarded the information with regard thereto to his higher officer,
B
namely, Deputy Superintendent of Police without any delay and
that the related FIR with the necessary endorsements therein
had reached the Ilaka Magistrate on the same date i.e. 28.08.2007
at 9 p.m. There is no evidence to either contradict or decimate
this finding based on records. In this view of the matter as well,
c the assertion of non-compliance of Section 57 of the Act does not
commend for acceptance. Having regard to the facts available,
the requirements of Section 57 had been duly complied with as
well. [Para 14] [787-F-H; 788-A]
3. An appraisal of the testimony of the prosecution
D · witnesses and in particular of PW-4 ASI and PW-5 HC, the seizure
witnesses, fully substantiate the recovery of the contraband i.e.
Poppy Husk from the conscious possession of the accused
persons. That the samples were properly sampled, sealed and
forwarded to the Forensic Science Laboratory through Malkhana
also stood established. The certificate of the Chemical Examiner,
E FSL to the effect that the seal of the samples was found intact and
that the same tallied with the specimen seals also rules out the
possibility of any tampering therewith. The fact that the contraband
was recovered from the car while the same was being driven by
one of the accused persons in the company of the other also
F authenticate the charge of their conscious possession thereof.
The haul of six bags of Poppy Husk is substantial so much so that
it negates even the remote possibility of the same being planted
by the police. Furthermore no evidence with regard to bias _or
malice against the Investigating Agency has been adduced. The
prosecution has been able to prove the charge against the accused
G persons beyond all reasonable doubt. The Courts below have
appreciated the materials on record in the correct legal and factual
perspectives and the findings recorded do not merit any
interference. [Paras 18, 19] [788-H; 789-A-E]
Mohinder Kumar v. State, Panaji, Goa (1998) 8 SCC
H 655 - distinguished.
DILBAGH SINGH v. STATE OF PUNJAB 783
State of Punjab v. Baldev Singh 1999 (3) SCR 977 : A
(1999) 6 SCC 172; Vijaysinh Chandubha Jadeja v. State
of Gujarat 2010 (13) SCR 255 : (2011) 1 SCC 609;
State of Punjab v. Balbir Singh 1994 (2) SCR 208 :
(1994) 3 SCC 299; Sajan Abraham v. State of Kera/a
2001 (1) Suppl. SCR 335: (2001) 6 SCC 692- referred
B
to.
Case Law Reference
(1998) 8 sec 655 distinguished Para9
1999 (3) SCR 977 referred to Para 13
c
2010 (13) SCR 255 referred to Para 13
1994 (2) SCR 208 referred to Para 15
2001 (1) Suppl. SCR 335 referred to Para 15
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
D
No. 1096 of2016.
From the Judgment and Order dated 21.01.2014 of the High Court
of Punjab & Haryana at Chandigarh in Criminal Appeal No. 261 of
2009.
Ms. Aparana Jha, Adv. for the Appellant. E
V. Madhukar, AAG., Ms. Anvita Cowshish, Ms. Sunita Sharma,
Advs. for the Respondent.
The Judgment of the Court was delivered by
AMITAVA ROY, J. 1. Heard Ms. Aparna Jha, learned counsel F
for the appellant and Mr. V. Madhukar, learned counsel for the respondent.
· 2. The appellant, faced with concurrent detenninations culminating
in his conviction along with another, under Section 15 of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short "the Act") is
before this Court seeking redress. Whereas the Trial Court, upon the
G
entering finding of guilt had sentenced the accused persons with rigorous
imprisonment for I0 years and six months each and fine of Rs. I lac
each with default sentence of rigorous imprisonment for one year, the
High Court in appeal has confirmed the verdict in toto by the decision
impugned herein.
H
784 SUPREME COURT REPORTS [2016] 7 S.C.R.
A 3. The prosecution case unfolds with the interception of the
appellant and the co·accused Ranjit Singh by the patrol party on
28.08.2007 while they were travelling in a car bearing registration
No.MH-04BS-l 65 I at the check point at Khanauri Patran. One Baaj
Singh, apart from the police party was then present. The appellant and
his companion, on being interrogated, disclosed their names. Their car
B
on search revealed six bags stuffed with Poppy Husk.
4. The Investigation Officer, A.S.I. Satnam Singh introduced
himself and apprised the appellant and the co-accused of their right to
be searched in the presence of a Gazetted Officer or a Magistrate if
they so desired but they declined and instead reposed confidence in him.
c After recording their consent in writing the car was searched in presence
of the other members of the patrol party as well as Baaj Singh and in
course thereof three bags each from the rear seat and the dicky, containing
Poppy Husk were recovered. Samples were taken and sealed with
specimen impression of the Investigating Officer. On weighment of the
D remaining Poppy Husk, the contraband weighed 34 kg. 800 gms in each
bag minus the samples taken. Personal search of the appellant and the
co-accused yielded currency ofRs.225/- and Rs.150/- respectively which
were also seized. The information of the exercise was forwarded to the
police station on which a formal FIR was lodged.
E 5. The sealed samples as well as the contraband as a whole were
deposited in the malkhana and were also produced before the concerned
Magistrate on the next date along with the accused persons. The sample
on chemical examination by the Forensic Science Laboratory disclosed
the same to be of Poppy Husk. Eventually, on completion of the
investigation challan was submitted and the appellant and the co-accused
F were made to face trial under Sections 15 and 25 of the Act, as they
pleaded "not guilty".
6. In support of the charge, the prosecution examined PW-I/
Constable Ravinder Singh, PW-2/S.I. Jaswinder Singh, PW-3/M.H.C.
Shamsher Singh, PW-4/A.S.I. Satnam Singh, PW-5/H.C. Darbara Singh
G and PW-6 Parminderpal Singh, who had participated in the entire drill.
7. All the incriminating circumstances were laid before the accused
persons in course of their examination under Section 313 Cr.P.C. and
they denied the correctness thereofand complained of false implication.
8. The Trial Court on a consideration of the evidence on record
H
DILBAGH SINGH v. STATE OF PUNJAB 785
[AMITAVA ROY, J.)
and after analysing the rival contentions held the charge to be proved A
and convicted and sentenced both the accused persons as above. The
appellant unsuccessfully challenged the conviction and sentence before
the High Court.
9. The learned counsel for the appellant has asserted that as the
Investigating Agency had contravened the mandatory prescriptions of B
Sections 50 and 57 of the Act, the conviction recorded by the Courts
below is patently illegal and non est in law. According to her, though
allegedly Poppy Husk was recovered from the car in which the appellant
and the co-accused were travelling at the relevant point of time, adherence
to the mandate of Section 50 of the Act was indispensable. Similarly, as
no report of the operation undertaken by the Investigating Agency c
involving the alleged seizure of the contraband had been reported to the
superior officer concerned, the exercise was in gross defiance of the
edict of Section 57 of the Act rendering the same null and void. The
learned counsel for the appellant, to reinforce the above pleas has pressed
into service the decision of this Court in Moflimler Kumar vs. State, D
Panaji, Goa - (1998) 8 SCC 655. No other argument has been
advanced.
I 0. As against this, the learned counsel for the respondent has
insisted that the .investigation had been conducted in meticulous compliance
of the dicta of the law qua Sections 50 and 57 of the Act in particular. E
Not only the accused persons were duly apprised of their right of search
in presence of a Gazetted Officer or a Magistrate before the search of
their car, they were afforded all opportunities to offer their defence in
the process undertaken. According to the learned counsel, the fact of
the interception of the accused persons and the recovery of the contraband
had been communicated to the concerned police station and to the Ilaka F
Magistrate through the higher officer i.e., Deputy Superintendent of Police
without any delay whatsoever. The sample with the stock of Poppy
Husk was properly sealed and deposited with the malkhana immediately
as per the procedure prescribed as well, he urged. The learned counsel
further submitted that though in a way, compliance of Section 50 of the G
Act was inessential in the facts of the case, as the vehicle was searched
which yielded the contraband, the Investigating Officer by way of
abundant caution did adhere thereto as well. As the information with
regard to the entire gamut of the investigation had been forwarded to
the higher officer i.e. Deputy Superintendent of Police and to the
H
786 SUPREME COURT REPORTS [2016) 7 S.C.R.
A concerned Magistrate without any delay, the demur based on Sections
50 and 57 of the Act is wholly misplaced, he urged.
11. The evidence on record as well as the rival assertions have
been duly evaluated.
12. As the essence of the impeachment is the non-compliance of
B the enjoinment of Sections 50 and 57 of the Act, for ready reference,
these provisions are extracted herein below:
"50. Conditions under which search of persons shall be
conducted - (I) When any officer duly authorised under Section
42 is about to search any person under the provisions of Section
c 41, Section 42 or Section 43, he shall, if such person so requires,
take such person without unnecessary delay to the nearest
Gazetted Officer of any of the departments mentioned in Section
42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person
D until he can bring him before the Gazetted Officeror the Magistrate
referred to in sub-section (I).
(3) The Gazetted Officer or the Magistrate before whom any
such person is brought shall, ifhe sees no reasonable ground for
search, forthwith discharge the person but otherwise shall direct
E that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason
to believe that it is not possible to take the person to be searched
to the nearest Gazetted Officer or Magistrate without the possibility
F
of the person to be searched parting with possession of any narcotic
drug or psychotropic substance, or controlled substance or article
or document, he may, instead of taking such person to the nearest
Gazetted Officer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal Procedure,
G 1973 (2of1974 ).
(6) After a search is conducted under sub-section (5), the officer
shall record the reasons for such belief which necessitated such
search and within seventy-two hours send a copy thereof to his
immediate official superior.
H
DILBAGH SINGH v. STATE OF PUNJAB 787
[AMITAVA ROY, J.]
57. Report of arrest and seizure - Whenever any person makes A
any arrest or seizure under this Act, he shall, within forty-eight
hours next after such arrest or seizure, make a full report of all
the particulars of such arrest or seizure to his immediate official
superior.
13. Whereas the conditions under which, the search as B
contemplated in Section 50 are limited only to the contingency of search
of any person, Section 57 prescribes that whenever any person makes
any arrest or seizure under the Act, he would within 48 hours next after
such arrest or seizure, make a full report of all the particulars of such
arrest or seizure to his immediate official superior. As it is no longer res
integra that the application of Section 50 of the Act is comprehended c
and called for only in the case of search of a person as distinguished
from search of any premises etc. having been authoritatively propounded
by the two Constitution Bench rulings of this Court in State of Punjab
vs. Baldev Singh -( 1999) 6 SCC 172 and Vijaysinfl Cluuulubfla Jmleja
vs. State of Gujarat-(2011) 1 SCC 609, further dilation in this regard, D
in the attendant facts and circumstances of the case, is considered
ine;,5ential. This is more so as the contraband in the case in hand had
been recovered from inside the car in which the petitioner and the co-
accused were travelling at the relevant point of time and not in course of
the search of their person. Noticeably, it had also not been the plea of
the defence ever that the alleged seizure according to the accused persons E
had been from their person. In the contextual facts therefore, Section 50
has no application to espouse the cause of the defence.
14. Qua the imputation of non-adherence of the requisites of
Section 57 of the Act, suffice it to note that both the Courts below, on an
analytical appreciation of the evidence on record have concurrently F
concluded that the Investigating Officer at the site, had after the arrest
of the accused persons and or seizure of the contraband forwarded the
information with regard thereto to his higher officer, namely, Deputy
Superintendent of Pol ice without any delay and that the related FIR with
the necessary endorsements therein had reached the Ilaka Magistrate G
on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence
forthcoming or referred to by the learned counsel for the petitioner to
either contradict or decimate this finding based on records. In this view
of the matter as well, the assertion of 11011-compl iance of Section 57 of
the Act does not commend for acceptance. In our view, having regard
H
788 SUPREME COURT REPORTS [2016] 7 S.C.R.
A to the facts available, the requirements of Section 57 of the Act had
been duly complied with as well.
15. The decision in Molti11der Kumar (supra) not only is
distinguishable on facts, as the search therein was of the petitioner's
premises, the investigation was afflicted as well by several other omissions
B on the part of the authority conducting the same. Though in this rendering,
it was observed that in State of Pu11jab vs. Balbir Si11gh - ( 1994) 3
SCC 299 the provisions of Sections 52 and 57 of the Act had been held
to be mandatory in character, it is pertinent to note that this Court in
Sajan Abra/tam vs. State ofKera/a -(200 I) 6 SCC 692 had exposited
that Section 57 was not mandatory in nature so much so that ifa substantial
c compliance thereof is made, it would not vitiate the case of the
prosecution. Incidentally the decision rendered in Balbir Singh (supra)
was rendered by a Coram of two Hon'ble Judges whereas the one in
Sajan Abra/tam (supra) was by a three Judge Bench.
16. In Balbir Singh (supra), a Bench of two Hon'ble Judges of
D this Court had enunciated, adve1ting to Sections 52 and 57 of the Act
that these provisions contain certain procedural instructions for strict
compliance by the officers, but clarified that if there was none, such
omission by itself would not render the acts done by them null and void
and at the most, it may affect the probative value of the evidence
E regarding arrest or search and in some cases, it may invalidate such
arrest or search. That the non-compliance had caused prejudice to the
accused persons and had resulted in failure of justice was necessary to
be demonstrated, was emphasised. It was ruled that these provisions,
which deal with the steps to be taken by the officers after making arrest
or seizure under Section 41 and 44 are by themselves not mandatory
F and ifthere was non-compliance or any delay was involved with regard
thereto, then it has to be examined, to ascertain as to whether any
prejudice had been caused to the accused and further whether, such
failure would have a bearing on the appreciation of evidence regarding
arrest or seizure as well as on the merits of the case.
G 17. Be that as it may, having regard to the evidence available
attesting the compliance of the requisites of Section 57 of the Act in the
instant case, we need not be detained by th is issue in praese/1/ i.
18. Aside the above, an appraisal of the testimony of the
prosecution witnesses and in particular of PW-4 ASI/Satnam Singh and
H
DILBAGH SINGH v. STATE OF PUNJAB 789
[AMITAVA ROY, J.]
PW-5 HC/Darbara Singh, the seizure witnesses, fully substantiate the A
recovery of the contraband i.e. Poppy Husk from the conscious
possession of the accused persons. That the samples were properly
sampled, sealed and forwarded to the Forensic Science Laboratory
through Malkhana also stands established. The certificate of the Chemical
Examiner, FSL to the effect that the seal of the samples was found
B
intact and that the same tallied with the specimen seals also rules out the
possibility of any tampering therewith. The fact that the contraband was
recovered from the car while the same was being driven by one of the
accused persons in the company of the other also authenticate the charge
of their conscious possession thereof. The haul of six bags of Poppy
Husk is substantial so much so that it negates even the remote possibility c
of the same being planted by the police. Furthermore no evidence with
regard to bias or malice against the Investigating Agency has been
adduced.
19. In the wake of the above, we are of the unhesitant opinion in
the face of the evidence on record, that the prosecution has been able to D
prove the charge against the accused persons beyond all reasonable
doubt. The Courts below have appreciated the materials on record in
the correct legal and factual perspectives and the findings recorded do
not merit any interference. The appeal is thus dismissed. The Trial Court
is hereby directed to take immediate follow up the steps so as to ensure
E
that the sentence awarded is served out by the accused persons.
Devika Gujral Appeal dismissed.
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