Delhi High Court
Soma vs State on 5 February, 2013
Author: Indermeet Kaur
R-12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment:05.02.2013
+ Crl. A.133/2000
SOMA ...Appellant
Through: Ms. Charu Verma, Adv
Versus
STATE ...Respondent
Through: Mr. Manoj Ohri, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (oral)
1 This appeal has impugned the judgment dated 19.01.2000 of the
learned Additional Sessions Judge wherein the appellant Soma had been
convicted under Section 21 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (NDPS) for having found to be in possession of
20 grams of smack and has been sentenced to undergo rigorous
imprisonment for ten years and fine of Rs. One lac and in default of
payment of fine, to further undergo simple imprisonment for two years.
Benefit of Section 428 Cr.PC had been granted.
Crl. Appeal No. 133/2000 Page 1 of 6
2 Record shows that on 30.04.2001, her sentence was suspended
and she was admitted to bail. It was noted that there appeared to be
some discrepancy in the marking of the sample; as per the investigating
office, the sample seized was powder but when the property was
produced in the Court, it was allegedly not so; it had also been noted
that the convict had undergone imprisonment for three years and four
months at the time when her sentence was suspended.
3 Learned amicus curiae has argued one single point; submission
being that the notice under Section 50 of the NDPS Act is sacrosanct
and must be adhered to on all counts; submission being that this is a
salutary provision which has to be complied with; it being mandatory if
there is any doubt cast upon the version of the prosecution, the entire
trial would stand vitiated.
4 Attention has been drawn to the notice which has been proved as
Ex. PW-3/C. The said notice reads as under:-
"Usmat Soma w/o Darshan, r/o 7083, Gali No. 9, Mata Rameshwari Nehru
Nagar, Prasad Nagar, Delhi" You are hereby informed that we have information
that you are in possession of Smack and you shall be search for the same. If you
desire so, a Gazetted officer or Magistrate shall be arranged to conduct the search.
Crl. Appeal No. 133/2000 Page 2 of 6
"one copy received Saahab Singh, SI
RTI of Smt. Sona W/o Darshan P.S.Narcotics Branch
Kamla Market, Delhi
19.12.97
I do not want that my search to be conducted in the presence of Gazette
Officer or Magistrate; you can take my search yourself.
RTI of Smt. Sona W/o
Darshan
Witnesses:
1. H.C. Nar Singh 116/E,
P.S.Narcotics Branch,
Kamla Market, Delhi
2. L/Ct. Rajesh Bala 150/Crimes
P.S.Narcotics Branch,
Kamla Market, Delhi
Saahab Singh, SI
RTI of Smt. Sona W/o Darshan P.S.Narcotics Branch
Kamla Market, Delhi
19.2.97"
5 Submission being that the appellant is admittedly an illiterate lady
and this is evident from the fact that she was not in a position to sign the
notice and she had only thumb marked it; the mandate of the right of the
accused to have her personal search conducted either by a Gazetted
officer or a Magistrate has not been explained to her. To support her
Crl. Appeal No. 133/2000 Page 3 of 6
submission reliance has been placed upon 2011 (7) SCALE 428 State of
Delhi Vs. Ram Avtar @ Rama. Submission being that on identical facts,
the Apex Court had upheld the findings returned by this Court that such
a notice does not fulfill the mandate of Section 50 of the NDPS Act.
6 Learned APP has countered this argument; it is submitted that this
notice has stood proved in the version of PW-3 HC Narsingh and has
been corroborated by the version of PW-8 SI Sahib Singh. Submission
being that the right of the availability of a Gazetted officer or a
Magistrate in the alternative had been duly explained to the appellant
and the notice does not suffer from any infirmity.
7 A perusal of Ex. PW-3/C shows that what has been informed to
the accused is an option to have her search conducted either in the
presence of a Gazetted Officer or a Magistrate. The word 'duly' used in
Section 50 of the Act connotes 'exact and definite compliance'. This
option which had been given to the appellant was only an information
that if she so desired, her search could be arranged before a Gazetted
Officer or a Magistrate; such an intimation cannot be treated as a
communication given to the appellant informing of her right under the
Crl. Appeal No. 133/2000 Page 4 of 6
law i.e. her right to be searched before the said authorities. It was an
obligation upon the searching officer to inform the appellant about this
legal right. Such an information should be unambiguous and definite
informing the suspect of her statutory safeguards.
8 In similar circumstance, in judgment of Ram Avtar (supra) where
also a notice containing the same words had been served upon the
appellant, the Apex Court upheld the finding returned by the High Court
that such an option given to the suspect was not an 'exact and definite
compliance' of Section 50 and as the mandate of Section 50 not having
been complied with, the recovery itself became illegal; the conviction
and sentence were liable to be set aside.
9 The language of this provision of statute is plain and simple. The
legislative intent is that compliance with these provisions is imperative.
In the present case, Ex. PW-3/C not complying with the mandate and
requirement of Section 50 and especially so in a case when the appellant
is an illiterate lady which fact had been confirmed that she had only
thumb marked on the notice and the investigating agency having not
explained this sacrosanct legal right to her, the conviction cannot be
Crl. Appeal No. 133/2000 Page 5 of 6
maintained. The appellant is accordingly entitled to an acquittal. She is
acquitted.
10 This Court appreciates the assistance rendered by Ms. Charu
Verma, learned amicus curiae who had been appointed by this Court to
render assistance in the matter.
11 Appeal is allowed in the above terms.
FEBRUARY 05, 2013 INDERMEET KAUR, J.
A
