Arbind Shah @ Ghultu Sah vs State of Bihar

R.N. Sahay, Member (J.

Appellant Arbind Sah @ Ghultu Sah aged about 25 years has been convicted u/s 8(c) read with Section 21 of the NDPS Act and sentenced to ten years RI.

In this case, 240 mg. of heroin were recovered from the possession of the appellant. The first contention of the learned Counsel for the appellant is that since small quantity of Narcotic substance was recovered from the possession of the appellant which is covered by Notification No. 0.827 (E), dated 14.11.1985 issued by the Ministry of Finance, Department of Revenue, Penal provision of Section 27(a) would be attracted and in that case maximum punishment is one year. It is contended that the sentence of 10 years is illegal. Smallness of quantity is a circumstance justifying inference of the person in possession being an addict and possessed the drug to satisfy personal craving for consumption, provision of Section 27 would be attracted.

Bombay High Court in Ahamad Usman Bhattiwala Vs. State of Maharashtra, held that when 5 gm. charas was found from the possession of the accused, the accused would qualify for lesser punishment provided u/s 27 of the Act.

Some High Court have held that absence of money in persons of accused is an important element furthering the inference that the drug found with the accused was of small quantity and meant for this personal consumption.

In Gaunter Edwin Kircher Vs. State of Goa, Secretariat Panji, Goa, , the Supreme Court gave benefit of Section 27 to the foreigner accused. The quantity of narcotic drugs was 5 gm. The appellant had not pleaded in clear terms that narcotic substance seized from his possession was meant for personal consumption.

Now, this question would be relevant only when it is proved that the prosecution according to law as provided u/s 50 of the Act made recovery of Narcotic Drugs from the accused. It is only after recovery of such substance according to law, the plea of the accused taken in defence would have any relevance.

In Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, , the Supreme Court set aside the conviction of the appellant before the Supreme Court on account of non-compliance of Section 50 of the NDPS Act. Dealing with this question. Hon''ble Bharucha, J. speaking for the Bench laid down laws as follows:--

It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but, which may extend to 20 years and also to fine which shall not be less that Rs. 1 lakh but, which may extend to Rs. 2 lakhs, and the Court is empowered to impose a find exceeding Rs. 2 lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act, it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequence that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the Legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a Gazetted Officer or a Magistrate. We endorse the finding in Baikuntha Nath Das and another Vs. Chief District Medical Officer, Baripada and another, , that the provisions in this behalf are mandatory and the language thereof, obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate.

Having regard to the object for which the provisions of Section 50 have been introduced into the NDPS Act and when the language thereof, obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of Gazetted Officer or a Magistrate, there is no room for drawing a presumption u/s 114. Illustration (e) of the Indian Evidence Act, 1872. By reason of Section 114, a Court "may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case". It may presume "(e) that judicial and official acts have been regularly performed". There is no room for such presumption because the possession of illicit articles under the NDPS Act, has to be satisfactorily established before the Court. The fact of seizure thereof, after a search has to be proved. When evidence of the search is given all that transpired in its connection must be stated. Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so demand. If, no evidence to this effect is given the Court must assume that the person to be searched was not informed of the protection of the law gave him and must find that the possession of illicit articles under the NDPS Act was not established.

We are unable to share the High Court''s view that in cases under the NDPS Act, it is the duty of the Court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by Section 50, that he had in fact done so. When the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the Court is duty-bound to conclude that the accused had not had the benefit of the protection that Section 50 affords; that, therefore, his possession of articles which are illicit under the NDPS Act is not established; that the precondition for his having satisfactorily accounted for such possession has not been met; and to acquit the accused.

The High Court relied upon the fact that the argument that Section 50 had not been complied with had not been made before the Trial Court and held that a point of fact could not be taken for the first time in appeal. The protection that Section 50 gives to those accused of being in possession of illicit articles under the NDPS Act is sacrosanct and cannot be disregarded on the technicality that the point was not taken in the Court of first instance.

Finding a person to be in possession of Articles which are ilicit under the provisions of the NDPS Act, has, as we have said, the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to punishmet which can extend to 20 years'' rigorous imprisonment and a fine of Rs. 2 lakhs or more. It is necessary, therefore, that Courts dealing with offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the officer concerned that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of this right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug-pedlars do not go scot-free due to non-compliance thereof. Such instructions would be of great value in the effort to curb drug trafficking. At the same time, those accused of possessing drugs should, however, heinous their ofence may appear to be, have the safeguard that the law prescribes.

In the present case also, it is established that the investigating Officer has not taken care to follow the procedure prescribed in Section 50 of the NDPS Act. Records of the case speaks probably the Investigating Officer was not even aware about the procedure laid down u/s 50 of the NDPS Act. The conviction of the appellant, therefore, must fail on technical ground of non-compliance of Section 50 of the NDPS Act which is held to be mandatory. The appellant has remained in custody for some time.

In the result, this appeal is accordingly allowed and the conviction of the appellant is set aside and he is acquitted of the charges. The appellant is directed to be set at liberty forthwith if, not required in any other case.