LexDAYALU KASHYAP versus THE STATE OF CHHATTISGARH
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
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SUPREME COURT REPORTS
[2022] 1 S.C.R.
[2022] 1 S.C.R. 1020
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DAYALU KASHYAP
v.
THE STATE OF CHHATTISGARH
(Criminal Appeal No. 130/2022)
JANUARY 25, 2022
[SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ.]
Narcotics Drugs and Psychotropic Substances Act,1985 – s.50
– Effect of – Search conducted by Sub-Inspector and not by a
Gazetted Officer or Magistrate, recovery of ganja from a polythene
bag on a Kanwad carried by appellant – Appellant convicted u/
s.20(b)(ii)(c), NDPS Act – Relying on State of Rajasthan v. Parmanand
& Anr. [2014] 3 SCR 522 and seeking to expand the scope of the
observations made, the appellant contended that the option given
to him to get himself searched from the Officer concerned not being
part of the statute, the same could not have been offered to him and
thus, if the personal search is vitiated by violation of s.50, the
recovery madeotherwise also would stand vitiated and thus, cannot
be relied upon – Held: Such an extended view cannot be given –
Recovery of ganja was from a polythene bag which was being carried
on a Kanwad – The recovery was not in person – Relief not granted
to the appellant – However, since the appellant had already
undergone 10 years of sentence and served about six months in the
alternative sentence of one year for non-payment of fine, the
sentence of one year against non-payment of fine was substitutedby
the sentence of about six months and the appellant was already set
free.
State of Rajasthan v. Parmanand & Anr. (2014) 5 SCC
345 : [2014] 3 SCR 522; State of Punjab v. Baldev
Singh 1999 (6) SCC 172 : [1999] 3 SCR 977 –
referred to.
Case Law Reference
[2014] 3 SCR 522
referred to
Para 4
[1999] 3 SCR 977
referred to
Para 4
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 130 of 2022.
From the Judgment and Order dated 28.03.2019 of the High Court
of Chhattisgarh, Bilaspur in CRA No.857 of 2011.
Devansh A. Mohta (AC), Adv. for the Appellant.
Sumeer Sodhi, Gaurav, Advs. for the Respondent.
The following Order of the Court was passed:
ORDER
1. Leave granted.
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.
4. We have heard learned counsel for the appellant on the aforesaid
question posed by him. Learned counsel has drawn our attention to the
DAYALU KASHYAP v. THE STATE OF CHHATTISGARH
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testimony of the Officer (PW-5) carrying out the search. Para 6 of the
testimony reads as under:
“6. Thereafter, on the spot, at the side of Pithapur Thothapada
Chowk, Murumroad, the accused was served notice u/s 50 of the
NDPS Act at 12.45 O’Clock that the information has been received
from the informer that the Ganja is kept at both ends of his Kanwad
for which it is necessary to conduct search. You can get the search
conducted from any Gazetted Officer, Magistrate or even by me.
The accused was explained about the meaning of Gazetted Officer
and Magistrate. Then, the accused gave veExcerpt shown. Read the full judgment & AI analysis in Lexace.