Mohd. Farukh Vs. State of N.C.T. of Delhi - Court Judgment

J.M. Malik, J.

1. The learned trial court handed down a verdict of guilty and sentenced the appellant to undergo Rigorous Imprisonment for a period of ten years and to pay a fine of Rs. One Lac, in default further Rigorous Imprisonment for one year under Section 18 of N.D.P.S. Act. The indictment against the appellant was that on 23rd March, 1992 at about 5.25 PM, opposite Palace Cinema within the bounds of Police Station Subzi Mandi, he was nicked with opium weighing 10 Kilograms.

2. A two fold argument was advanced by the learned Counsel for the appellant to assail the judgment of trial court. The first argument submitted by learned Counsel for the appellant was that following a tip off, the appellant was apprehended, one bag of green colour was recovered from the right hand of the accused which contained the above said contraband. Learned Counsel for the appellant argued with vehemence that no notice under Section 50 of the NDPS Act was served upon the appellant. In support of his case, he has cited an authority reported in Namdi Francis Nwazor v. Union of India 1997 (1) CCR 27 S.C., wherein it was held:

On a plain reading of Sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and no search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to Sub-section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This .would, in effect mean that when the person of the accused is being searched the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where search takes place but that cannot alter the position in law that the said article was not be,ing carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a hand bag or like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act. However, when an article is lying elsewhere and is not on the person of the accused and is brought to a place where the accused is found and on search, incriminating articles are found therefrom it cannot attract the requirements of Section 50 of the Act for the simple reason that it was not found on the accused person. So, on the facts of this case it is difficult to hold that that Section 50 stood attracted and non-compliance with that provision was fatal to the prosecution case.

3. I see no merit in this argument. The abovesaid authority does not apply to the present case. The position was clarified in later authorities. In the State of H.P. v. Pawan Kumar : 2005 (4) SCC 350, it was held:

A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a humarTbeing. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or wight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular articles, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word 'person' occurring in Section 50 of the Act.

4. In the latest authority reported in State of Haryana v. Ranbir Singh @ Rana 2006 SCC 166, the recovery of contraband article from plastic bag carried by accused was effected. It was held that in view of State of H.P. v. Pawan Kumar 2005 (4) SCC 385, Section 50 was not applicable in such a case. It was further held that observation made in the Namdi Francis Nwazor v. Union of India : 1998 (8) SCC 534 that the accused is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50, is merely an obiter and does not constitute the ratio decidendi. It was held that Namdi Francis Nwazor, : 1998 (8) SCC 534 was correctly distinguished in Pawan Kumar : 2005 (4) SCC 350.

5. Similar view was taken in State of Punjab v. Balwant Rai, 2005 III AD (S.C.) 407.

6. It was also argued on behalf of the appellant that there is not even an iota of evidence which may go to show that the provisions of Section 57 NDPS were complied with.

7. This argument does not in any way whittle down the value of prosecution evidence. It is well settled that Section 57 is not mandatory and the appellant has failed to show that any prejudice was caused to him due to non compliance of that provision. This view neatly dovetails with the observations made in authorities reported in Sajan Abraham v. State of Kerala 2001 VI AD (S.C.) 89; Krishna Kanwar @ Thakuraeen v. State of Rajasthan 2004 II AD (S.C.) 453; State of Punjab v. Balbir Singh : (1994) 3 SCC 299 and Rangi Ram v. State of Haryana 2002 (2) JCC 1041.

8. No other point was urged. However, it may be mentioned here that the case of the prosecution case stands sufficiently proved. It was supported by a galaxy of witnesses namely R.S. Dhaiya, AGP PW2; Bir Singh, Inspector PW3; Kiran Pal, Head Constable PW6; Radhey Shyam, Public Witness PW7; Surender, S.I. PW8. The record reveals that Radhey Shyam supported the prosecution case during his examination in chief conducted on 23.08.1999. His cross-examination was deferred at the request of the learned defence counsel. He again appeared on 19.02.2001 but the learned defence counsel succeeded in taking adjournment on the ground that like 23.08.1999 he had again not gone through'the file. Ultimately, the witness was cross-examined on 22.03.2001, when he stated that he was unable to say whether the person who was apprehended by the police is the same person, who was present in the court because it is an old matter. The learned trial Judge rightly pinned faith on the examination in chief and ignored the cross-examination, see Khuji @ Surender Tewari v. State of Madhya Pradesh : AIR 1991 S.C. 1853 and State of Madhya Pradesh v. Badri Yadav and Anr. : JT 2006 (4) SC 154.

9. Prosecution case stands proved. There is not even a scintilla of doubt in the mind of Court. I am unable to take a view different from the one taken by the Court below in fastening liability upon the appellant. The appeal is, therefore, dismissed.