Case Note & Summary
The appellant, Krishna S/o Kavi Raj Malla, was convicted by the Special Judge of Narcotic Drugs & Psychotropic Substances Court, Mapusa, for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for being in illegal possession of 2.225 kg of Charas, a commercial quantity. He was sentenced to rigorous imprisonment for ten years and a fine of Rs.1,00,000/-, with a default sentence of six months. The appellant challenged the conviction and sentence before the High Court of Bombay at Goa under Section 374 of the Code of Criminal Procedure, 1973. The facts of the case are that on 29.11.2011, the Anti Narcotic Cell, Panaji, received reliable information that a person of Nepali features would be near Milagres Church, Madlo Waddo, Morjim, Pernem Goa, to deliver narcotic drugs between 18.40 hrs to 19.30 hrs. PW7 Lady Police Sub-Inspector Mira D'Silva reduced the information into writing, sent a copy to the Deputy Superintendent of Police, and arranged a raid. The raiding party reached the spot and found the appellant waiting near the church. Upon search, a bag carried by the appellant was found to contain 2.225 kg of Charas. The appellant was arrested and charge-sheeted. The trial court convicted him. The main legal issue raised in the appeal was whether the mandatory provisions of Section 50 of the NDPS Act were violated, as the appellant was not informed of his right to be searched before a Magistrate or Gazetted Officer. The appellant argued that the recovery was from his person and Section 50 was not complied with. The State contended that the recovery was from a bag, not from the person, and thus Section 50 was not attracted. The High Court analyzed the law and held that Section 50 of the NDPS Act applies only to personal search, not to search of baggage or containers. Since the contraband was recovered from a bag carried by the appellant, the mandatory requirements of Section 50 were not applicable. The court also found that the prosecution had proved the case beyond reasonable doubt. Consequently, the High Court dismissed the appeal and upheld the conviction and sentence.
Headnote
A) Narcotic Drugs - Search and Seizure - Section 50 of NDPS Act - Applicability - The mandatory requirement of informing the accused of his right to be searched before a Magistrate or Gazetted Officer under Section 50 of the NDPS Act applies only when the search is of the person, not when the contraband is recovered from a bag or container carried by the accused. - Held that the recovery from a bag does not attract Section 50, and the conviction was upheld. (Paras 7-10) B) Narcotic Drugs - Commercial Quantity - Section 20(b)(ii)(C) of NDPS Act - Conviction - The appellant was found in possession of 2.225 kg of Charas, a commercial quantity, and was convicted and sentenced to ten years' rigorous imprisonment and fine of Rs.1,00,000/-. - Held that the prosecution proved the case beyond reasonable doubt, and the appeal was dismissed. (Paras 2, 11)
Issue of Consideration
Whether the mandatory provisions of Section 50 of the NDPS Act were violated when the contraband was recovered from a bag carried by the appellant, and whether the conviction under Section 20(b)(ii)(C) of the NDPS Act is sustainable.
Final Decision
Appeal dismissed. Conviction and sentence upheld.
Law Points
- Section 50 of NDPS Act applies only to personal search
- not to search of baggage or container
- Section 20(b)(ii)(C) of NDPS Act
- Section 374 of CrPC
