Case Note & Summary
The appellant, Allan Bainbridge, was convicted by the learned NDPS Court at Mapusa in Special Criminal Case (NDPS) No.38/2014 for the offence punishable under Section 8(c) read with Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was found in illegal possession of 6.6 grams of LSD Liquid and 11.4 grams of MDMA, both commercial quantities, during a narcotic raid conducted on 17.05.2014 at Bamonwado, Anjuna, Bardez, Goa. The raid was carried out by PSI Dinesh Gadekar (PW6) of the Anti Narcotic Cell, Panaji, based on specific and reliable information. The accused was sentenced to rigorous imprisonment for ten years and a fine of Rs.1,00,000/- with a default sentence of one year simple imprisonment. The appeal challenged the conviction on two main grounds: first, that the complainant and investigating officer were the same, which vitiated the prosecution as per Mohan Lal v. State of Punjab; and second, that there was a violation of the mandatory provisions of Section 50 of the NDPS Act. The High Court rejected both grounds. Regarding the first ground, the court noted that the decision in Mohan Lal was overruled by Mukesh Singh v. State (Narcotic Branch of Delhi) on 31.08.2020, and even otherwise, Mohan Lal was held prospective in Varinder Kumar v. State of Himachal Pradesh, applying only to prosecutions initiated after 16.06.2018. Since the trial in this case commenced before that date, the ground was not available. On the second ground, the court held that Section 50 of the NDPS Act applies only to personal searches, not to searches of premises, and relied on Raymond Locke v. State of Goa. Consequently, the appeal was dismissed and the conviction and sentence were upheld.
Headnote
A) Criminal Law - NDPS Act - Complainant as Investigating Officer - The ground that the complainant and investigating officer were the same does not vitiate the prosecution in light of the Supreme Court's decision in Mukesh Singh v. State (Narcotic Branch of Delhi), which overruled Mohan Lal v. State of Punjab. Further, Mohan Lal was held prospective in Varinder Kumar v. State of Himachal Pradesh, and the present trial commenced before 16.06.2018, making it inapplicable. (Paras 5-6)
B) Criminal Law - NDPS Act - Section 50 Compliance - The mandatory provisions of Section 50 of the NDPS Act are not attracted when the search is of premises and not of a person. The court relied on Raymond Locke v. State of Goa to reject this ground. (Para 7)
C) Criminal Law - NDPS Act - Possession of Commercial Quantity - The prosecution established that the accused was found in possession of 6.6 grams of LSD Liquid and 11.4 grams of MDMA, both commercial quantities, and the accused failed to account for the possession. The conviction under Section 8(c) r/w Section 22(c) was upheld. (Paras 2-3, 8)
Issue of Consideration
Whether the conviction under Section 8(c) r/w Section 22(c) of the NDPS Act for possession of commercial quantities of LSD and MDMA is sustainable when the complainant and investigating officer were the same, and whether there was violation of Section 50 of the NDPS Act.
Final Decision
The appeal is dismissed. The conviction and sentence of the appellant under Section 8(c) r/w Section 22(c) of the NDPS Act are upheld.
Law Points
- complainant as investigating officer not fatal after Mukesh Singh
- Section 50 NDPS Act not applicable to search of premises
- commercial quantity presumption under Section 54 and 35 NDPS Act
- prospective overruling of Mohan Lal
Case Details
2020 LawText (BOM) (09) 55
Criminal Appeal No. 26 of 2019
Mr. Ryan Da Piedade Menezes (for Appellant), Mr. Pravin Faldessai (for Respondent)
The State of Goa, through Police Inspector, Anti Narcotic Cell Police Station, Panaji
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Nature of Litigation
Criminal appeal against conviction under NDPS Act
Remedy Sought
Appellant sought acquittal from conviction and sentence under Section 8(c) r/w Section 22(c) of NDPS Act
Filing Reason
Appellant was convicted for possession of commercial quantities of LSD and MDMA and sentenced to ten years RI and fine
Previous Decisions
The learned NDPS Court at Mapusa convicted and sentenced the appellant on 23.02.2016 in Special Criminal Case (NDPS) No.38/2014
Issues
Whether the conviction is vitiated because the complainant and investigating officer were the same?
Whether there was violation of Section 50 of the NDPS Act?
Submissions/Arguments
Appellant argued that the complainant being the investigating officer vitiates the prosecution as per Mohan Lal v. State of Punjab.
Appellant argued that there was non-compliance with Section 50 of the NDPS Act.
Respondent argued that Mohan Lal has been overruled by Mukesh Singh and is prospective, and Section 50 does not apply to premises searches.
Ratio Decidendi
The decision in Mohan Lal v. State of Punjab, which held that the complainant cannot be the investigating officer, was overruled by Mukesh Singh v. State (Narcotic Branch of Delhi) and was also held prospective in Varinder Kumar v. State of Himachal Pradesh, applying only to prosecutions initiated after 16.06.2018. Since the trial in this case commenced before that date, the ground is not available. Further, Section 50 of the NDPS Act applies only to personal searches, not to searches of premises, as held in Raymond Locke v. State of Goa.
Judgment Excerpts
This appeal is directed against the judgment and order dated 23.02.2016 made by the learned NDPS Court at Mapusa in Special Criminal Case (NDPS) No.38/2014 by which the accused was convicted of the offence punishable under Section 8(c) r/w. Section 22(c) of the NDPS Act, 1985...
Mr. Menezes, learned counsel for the appellant at the outset submitted that the appellant had raised a ground that when the complainant as also the investigating officer were one and the same, the entire prosecution is vitiated as held by the Hon'ble Apex Court in Mohan Lal v. State of Punjab – 2018 (17) SC 627.
However, Mr. Menezes, quite fairly pointed out that the decision in Mohan Lal (supra) no longer represents the correct position in law as held in Mukesh Singh v. State (Narcotic Branch of Delhi)...
Even otherwise, in Varinder Kumar v. State of Himachal Pradesh – 2020 (2) SCC 321, the Hon'ble Apex Court had itself clarified that the law laid down in Mohan Lal (supra) was only prospective and therefore inapplicable to prosecutions, trials and appeals instituted prior to the said decision i.e. 16.06.2018.
Mr. Menezes, learned counsel for the appellant also submitted that in this case the ground that there was violation of the mandatory provisions of Section 50 of the NDPS Act was also raised. However, even this ground, stands answered against the accused by the decision of this Court in Raymond Locke v. State of Goa - Criminal Appeal No.82 of 2018 delivered on 04.09.2020.
Procedural History
The appellant was convicted and sentenced by the learned NDPS Court at Mapusa on 23.02.2016 in Special Criminal Case (NDPS) No.38/2014. He appealed to the High Court of Bombay at Goa, which heard the appeal and delivered judgment on 24.09.2020.
Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985: Section 8(c), Section 22(c), Section 50, Section 54, Section 35
- Code of Criminal Procedure, 1973: Section 313
