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Conviction in violation of Section 50 NDPS Act

Shivendra Pratap Singh

Advocate

03/04/2022

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Question: Please advise whether I have any remedy against the conviction in violation of Section 50 NDPS Act. On 2nd April 2018 Mr. Takunichi was on his way to Changlang from Itanagar travelling in a white Scorpio bearing registration No. XXXX. His friend Mr. Dikunima was also accompanying him. On their way to Changlang, they were signalled to stop by the Assam Police on Dibrugarh Highway. Upon stopping the police inquired them as to the origin and destination of their travel. On being told that they were going to Changlang, the police sub inspector Mr. Akasuni, who is also notoriously known for extracting money from passengers asked them to open their boot space of the car so that they could conduct a check. 

Due to the frequent harassment by Assam Police over Arunachalee Passengers, Mr. Takunichi resisted the conduction of the checking and said that they were getting late for an urgent work in changlang and also drawn the attention of the police to the fact that other cars were neither being stopped nor being checked. Both of them, despite getting late, got out of the car. 

However, Mr. Akasuni conducted the search in presence of three people Mr. Hasan who was a traveller and two head constables Mr. Puri and Mr. Aminoor. Upon the search a packet was found in the boot space area underneath its cover. The packet consisted of 500 grams of opium like substance. While the packet of the substance was in the hand of the Mr. Akasuni.

Mr. Takunichi got into the car and attempted to flee the scene, on that Mr. Aminoor tried stopping Takunichi by running and standing in front of the car. However, Takunichi did not stop, he hit Aminoor and as a result Aminoor fell on the ground hitting his head. Takunichi fled the scene leaving Dikunima behind. Mr. Dikunima was arrested by the Police. Aminoor died later in the hospital due to internal bleeding as per the postmortem report. 

The sub inspector Mr. Akasuni registered an FIR numbered 000 under the provisions of Narcotics Drugs and Psychotropic substances Act 1985 (NDPS) and Indian Penal Code and handed over the accused and case to Arunachal Police at Itanagar police station, capital complex. The Incharge of the Police station was Mr. Abdul who was also a good friend of Mr. Akasuni. Mr. Abdul appointed Ms. Yami, Sub inspector as the Investigating Officer. 

A non-bailable warrant was issued against Mr. Takunichi. Later on Takunichi was arrested by Itanagar Police on 18th August 2018 and upon interrogation, he stated that he feared that Assam Police would arrest him and not afford him opportunity to talk to his relative or defence. He also stated that he feared that his Right to Life under Article 21 would be violated and that he would not be afforded his procedural rights as provided in Code of Criminal Procedure. 

Both the accused were produced before the magistrate on 20th August 2018 and investigation was initiated. A seizure report mentioning ‘seizure of Opium like substance and the car’ was prepared by Ms. Yami. The Opium like substance was sent for forensic test to the State Forensic Lab, Itanagar. As per the forensics expert the opium like substance was made by deriving the unripe seed pods of the opium poppy and that the substance was prepared as per the process called laudanum. 

Further no fingerprints were found on the packet. Upon investigation the following facts were discovered by the Investigating officer. a. That on March 15th 2018 Mr. Takunichi met his friend Mr. Takar at a café regarding some business purpose. Mr. Takar stated that in the meeting, Takunichi said that “nowadays the drug business is very lucrative and being a drug lord would make you rich beyond your imagination”. 

However, Mr. Takar however, laughed it off thinking it was just an unusual comment or joke cracked by his friend Takunichi. That Mr. Takunichi did not have a settled life and relied on contractual works for his livelihood. He was married and had two kids. However, he rarely visited his wife and children who were residing in another district. 

That the scorpio which was used for travelling by Takunichi and Dikunima was actually owned by Ms. Pilu and that Takunichi had hired the car saying that he needs to visit his family and take them to a vacation at a nearby place. Ms. Pilu denied having knowledge of Takunichi being involved in any kind of drug related cases and said that he had agreed to let Takunichi use the car since one of her friends had requested her to do so. Police did not investigate nor did they try to record statements of Ms. Pilu’s Friend. 

As per Dikunima’s statement, he had just met Takunichi in Banktinali on the day of travel and had joined Takunichi to accompany him and also visit Changlang since he had never been out of Itanagar. It was discovered that in fact, Dikunima and Takunichi had a telephonic conversation the prior day of travelling and the records showed that the duration of the call was about 15 minutes. 

The Police filed the Charge sheet as per Section 173 of Cr.P.C. The specific Fast Track Court itself took the cognizance and framed charges under Section 304 A of IPC & Section 17 and section 18 of NDPS Act and commenced the Trial. During the trial, the defence raised the grounds that the appellant was falsely implicated by the Police. Defence also pleaded that the investigation conducted was full of flaws and irregularities and that no fingerprint of the accused was found on the packet. 

Upon further investigation by the IO, it was also discovered that Mr. Takunichi had been previously convicted under Section 18 of NDPS Act in 2011 and was convicted to undergo Rigorous Imprisonment for a duration of 5 Years. The records were presented by the Prosecutor before the court. The Courts did not delay the process and additional charges were not framed. 

The trial court after hearing the parties and on the basis of the materials on record and also considering the prior conviction of Mr. Takunichi convicted him under section 31 of NDPS Act to undergo Rigorous Imprisonment of 15 years and to undergo Imprisonment of 2 Years under Section 304 A of IPC. and a fine of Rs. 5 lakhs to the victim’s wife. And convicted Mr. Dikunima under 8 (c) read with section 18 (c) of NDPS Act for Rigorous Imprisonment on Ten Years and a fine of Rs. 5 lakhs. 

Appeal was Preferred in the high Court of Guwahati Itanagar Bench by both the accused on the grounds that the prosecution has failed to prove the case beyond reasonable doubt and that the trial court has committed error in appreciating the facts and circumstance of the case. The conviction is illegal because it is passed in violation of section 50 NDPS Act. and that court erred in following the proper procedures. And that the mode of search and seizure did not stand legal scrutiny under procedural laws and additionally it was not in compliance with section 50 of NDPS. 

An additional appeal was also filed in the High Court by the Victim Aminoor’s Wife Begum Heera for inadequate sentence and inadequate compensation. The High court maintained the conviction and sentences accorded by the Trial Court. What are the issues that can be raised against the state?

Asked from: Arunachal Pradesh

You have said that the High Court has maintained the quantum of sentence and conviction. Then how could you contest the appeal. The High Court has already decided you appeal therefore, no chance to counter the state. 

In this situation you should prefer a Special Leave Petition in the Supreme Court against the decision of the High Court. The facts of your case suggest that the police officer had violated the provisions of Section 50 of the NDPS Act

It was not a normal search operation. The police officer, on duty, asked to open the boot space with the hope that a psychotropic or narcotics substance may be found there. Police officers know that there is a chance to recover a narcotic drug or psychotropic substance. 

Thus the provision of Section 50 will attract in your case. The search must be conducted in the presence of the Magistrate. Police officers having the duty to maintain law and order, are not empowered to conduct search under NDPS Act.

In State of Punjab v. Balbir Singh AIR 1994 SC 1872 the Supreme Court has held that normal police officers cannot hold search operations if they have the chance to recover any substance relating to the NDPS Act. the court has held that:

If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr. P.C. and when such search is completed at that stage S. 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise.

If during such search or arrest there is a chance of recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act.

Hence, you should move a SLP in the Supreme Court against the decision of the High Court. Search in violation of Section 50 creates doubt regarding the recovery of narcotics. 

When there was a chance to recover narcotics the search operation should be conducted by the officer empowered under the NDPS Act. In your case the search is illegal and violates the provision of section 50. 

If conviction is recorded only on the basis of recovery of narcotics then such a decision is illegal if search was made in violation of Section 50 NDPS Act. In Vijaysinh Chandubha Jadeja v. State of Gujarat AIR 2011 SC 77 the Supreme Court has held that:

Provisions of sub-section (1) of Section 50 makes it imperative for the empowered officer to “inform” the person concerned (suspect) about the existence of his right that if he so required, he shall be searched before a gazetted officer or a Magistrate. Failure to “inform” the suspect about existence of his said right would cause prejudice to him and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. 

You should file a SLP and the Supreme Court may reverse this erroneous decision of the High Court. Your conviction is void because it violates the provision of Section 50 of the NDPS Act. The seizure of narcotics seems illegal and doubtful because the police officer was not empowered to conduct search and seize such a substance. The police officers who had conducted the search operation did not inform the accused about his rights under Section 50 NDPS Act. It renders the conviction in violation of section 50 NDPS Act.

shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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