Case: DAYALU KASHYAP Vs. THE STATE OF CHHATTISGARH

2. The present appeal arises qua an incident of 11.09.2010 of 10.30 in the morning when Sub Inspector K.S.Singh (PW-5), on the basis of the information received, apprehended the appellant and found that he was carrying Ganja in a green polythene bag on a wooden Kanwad from Bhaisabeda to Pithapur for transportation. The appellant was charged under the Narcotics Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and tried by the Special Judge who convicted the appellant under Section 20(b)(ii)(c) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1 lakh. The appellant preferred an appeal before the High Court of Chhattisgarh but that appeal was dismissed by the impugned order dated 28.03.2019.3. We issued notice on 01.02.2021 including on the bail application as the appellant had undergone sentence of 10 years and his inability to pay fine was resulting in him serving out the remaining sentence of one year. In the course of hearing this matter with some other matter, on 01.03.2021, we noticed that the only point which really arose for consideration was from the effect of provisions of Section 50 of the NDPS Act. Since the petitioner had already undergone 10 years of sentence and served about six months in the alternative sentence of one year for non-payment of fine, we considered appropriate to substitute the sentence of one year against non-payment of fine by the sentence of about six months and directed the appellant to be set free. The appellant was accordingly set free on 03.03.2021.

Reasoning: The judgment in turn, relied upon a Constitution Bench judgment of this Court in State of Punjab v. Baldev Singh – 1999 (6) SCC 172 to conclude that if a search is made by an empowered Officer on prior information without informing the person of his right that he has to be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to take his search accordingly would render the recovery of the illicit article suspicious and vitiate the conviction and sentence of the accused where the conviction has been recorded only the on basis of possession of illicit articles recovered from his person. The third option stated to be given to the accused to get himself searched from the Officer concerned not being part of the statute, the same could not have been offered to the appellant and thus, the recovery from him is vitiated.6. In the conspectus of the facts of the case, we find the recovery was in a polythene bag which was being carried on a Kanwad. The recovery was not in person. Learned counsel seeks to expand the scope of the observations made by seeking to contend that if the personal search is vitiated by violation of Section 50 of the NDPS Act, the recovery made otherwise also would stand vitiated and thus, cannot be relied upon. We cannot give such an extended view as is sought to be contended by learned counsel for the appellant.