Case Note & Summary
The appellants, Baldeosingh s/o Jagannathsingh Sengar and Ishwarsingh s/o Dakursingh Gaur, were convicted by the Special Court under NDPS Act, Nagpur in Special Criminal Case No.10/2014 for offences punishable under Section 20 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). They were sentenced to rigorous imprisonment for three years and a fine of Rs.10,000 each, with default sentence. The prosecution case was that on 10.10.2013, complainant API Santosh Shegaonkar (PW5) was on patrol duty when he saw accused no.1 carrying a bunch of green leaves resembling marigold flowers. Suspecting contraband, he made enquiry, whereupon accused no.1 threw the bunch and fled. A passerby, Jaipal Rathod (PW3), identified the fleeing person as Baldeosingh. The police seized 23.300 kg of ganja leaves, sent a sample for analysis, and later arrested both accused. The trial court convicted them. On appeal, the High Court examined the evidence and found several infirmities. The panch witnesses (PW1 and PW2) turned hostile and did not support the prosecution. The only witnesses were police personnel. The court noted that there was no compliance with Section 50 of NDPS Act, as the accused was not informed of his right to be searched before a Gazetted Officer or Magistrate. Additionally, the prosecution failed to prove conscious possession, as the contraband was allegedly thrown by accused no.1 and there was no evidence linking accused no.2 to the seizure. The court held that the conviction was based on weak evidence and set aside the judgment of the trial court, acquitting both appellants.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20 read with Section 29 - Conviction - Appeal against - Appellants convicted for possession of ganja - Held that prosecution failed to prove conscious possession beyond reasonable doubt - Non-compliance with Section 50 of NDPS Act regarding search of person - No independent panch witnesses examined - Conviction set aside (Paras 1-10). B) Evidence Law - Witnesses - Independent Witnesses - Panch witnesses - In a case under NDPS Act, it is desirable to examine independent panch witnesses to corroborate prosecution case - Failure to do so creates doubt - Held that conviction cannot be sustained solely on police witnesses (Paras 5-8). C) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search of Person - Compliance mandatory - In the present case, no compliance with Section 50 as the accused was not informed of his right to be searched before a Gazetted Officer or Magistrate - Held that such non-compliance vitiates the trial (Paras 6-9).
Issue of Consideration
Whether the conviction of the appellants under Section 20 read with Section 29 of the NDPS Act is sustainable in law, particularly in light of alleged non-compliance with mandatory provisions of Section 50 of the NDPS Act and lack of independent witnesses.
Final Decision
The appeal is allowed. The judgment and order dated 06.01.2018 passed by the Special Court under NDPS Act, Nagpur in Special Criminal Case No.10/2014 is set aside. The appellants are acquitted of the offences punishable under Section 20 read with Section 29 of the NDPS Act. Their bail bonds stand cancelled.
Law Points
- Non-compliance with Section 50 of NDPS Act
- Requirement of independent witnesses
- Conscious possession
- Burden of proof on prosecution
- Standard of proof beyond reasonable doubt
