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Synopsis

The Supreme Court has restored conviction of a man in a drug trafficking case, by emphasising that if the recovery was not from the person and whereas from a bag carried by him, the procedure formalities prescribed under Section 50 of the NDPS Act was not required to be complied with. 

A bench of Justices CT Ravikumar and Sanjay Karol set aside the Kerala High Court's judgment of May 23, 2023 which acquitted respondent Prabhu in the case related to possession of contraband ganja of 2.050 kg in a bag by him.

The trial court held the man guilty for the offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced him to five years prison term with Rs 50,000 fine.

The case was detected on January 10, 2019 during the course of patrol duty by the Excise Inspector and his party. 

Trial court had held since the recovery was effected from the bag which was in possession of the respondent herein, Section 50 of the NDPS Act was not to be complied with. 

Section 50 of the NDPS Act grants a man to be searched, a right to seek presence of gazetted officer or magistrate during the search.

Upon appeal, the High Court reversed the trial court's judgment on the ground of failure to comply with the formalities prescribed under Section 50 of the NDPS Act, holding that it rendered the search and seizure illegal. 

In its appeal, the state government submitted the reasoning of the High Court for reversing the conviction and acquitting the respondent on the ground that the mandatory formalities provided under Section 50 of the Act were not complied with and thereby the search and seizure were rendered illegal is contrary to the law laid down by this court in view of the indisputable factual position that the contraband was recovered from the bag in possession of the respondent.

The state counsel relied on a two-bench decision of this Court in Ranjan Kumar Chadha vs. State of Himachal Pradesh (2023).

The bench also said, "It is evident that the exposition of law on the question regarding the requirement of compliance with Section 50 of the NDPS Act is no more res integra and this Court in unambiguous term held that if the recovery was not from the person and whereas from a bag carried by him, the procedure formalities prescribed under Section 50 of the NDPS Act was not required to be complied with."

The court also pointed out it is to be noted that in the case on hand also the evidence indisputably established that the recovery of the contraband was from the bag which was being carried by the respondent. 

"In the said circumstances and in the light of the law laid down by this Court in Ranjan Kumar Chadha, it can only be held that the understanding of the law by the High Court on the said issue of requirement to comply with Section 50 of the NDPS Act is contrary to the law laid down by this Court," the bench said.

The court therefore held that the impugned judgment cannot be sustained and it required interference, while setting aside the High Court's judgment and restoring the trial court's judgment.

Amicus Curiae, appearing for the respondent, submitted that the respondent had actually undergone four years, four months and twenty one days of incarceration pursuant to the order of conviction. 

The court also noted perusal of Section 20(b)(ii)(B) of the NDPS Act would reveal that no minimum sentence is prescribed thereunder though it provides that an imprisonment may extend to ten years and with fine which may extend to rupees one lakh.

Allowing the respondent's plea, the bench said the corporeal sentence for the conviction under Section 20(b)(ii)(B) of the NDPS Act can be confined to the period already undergone by him. 

The court granted the respondent 30 days time to pay the fine of Rs 50,000 or he would undergo the default sentence imposed upon him by the Trial Court as per its judgment.