DILIP AND ANR. versus STATE OF M.P.

Citation: [2006] SUPP. 9 S.C.R. 390 · Decided: 24-11-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
DILIP AND ANR. 
v. 
STA TE OF M.P. 
NOVEMBER 24, 2006 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985; Ss. 8118, 42, 
50 and 57: 
Search and seizure of Narcotic Drugs-Recovery of Opium-Arrest of 
accused-Acquitted by trial Court holding that the search and seizure vitiated 
in law for non-compliance of mandatory statutory requirements in terms of 
provisions of the Act-Reversed by High Court-On appeal, Held: Witnesses 
to the seizure did not support the case of prosecution and declared hostile-
D High Court without assigning any reasons held that the provisions of Section 
42 and also Section 50 of the Act are not required to be complied with-
First Information Report did not contain any statement about compliance qf 
the provisions of Section 50 nor it forms an opinion about the possession of 
contraband goods by accused-Notices did not confirm to the requirements 
of law-High Court was dealing with a judgment of acquittal, it was bound 
E to show that findings of trial Court not legally tenable, but it failed to do 
so-Hence, impugned judgment cannot be sustained and set aside-Code of 
Criminal Procedure, 1973-Section 161-Evidence-Official witnesses-
Credibility of 
F 
G. 
H 
A Police Officer, SHO of a Police Station, found accused-appellants 
moving out on a Scooter at a fast speed. He stopped them and on search of the 
scooter, opium was recovered. An FIR was lodged and accused were arrested 
on the spot The Trial Court recorded a judgment of acquittal holding that the 
search and seizure was vitiated in law as mandatory statutory requirements 
contained in Sections 42 and 50 the Narcotic Drugs & Psychotropic 
Substances Act (NDPS) were not complied with. The seizure witnesses did 
not support the prosecution case. The informant also did not comply with the 
requirements of Section 57 of the NDPS Act. Sealing of the contraband 
materials was not carried out in accordance with law as no responsible officer 
fixed seal on the seized samples. High Court reversed the said judgment of 
390 
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DILIPv. STATEOFM.P. 
391 
Trial Court holding that the provisions contained in Section 57 of the NDPS A 
Act are not mandatory and there has been a substantial compliance of the 
relevant provisions; the question of obtaining any warrant from a Magistrate 
or a Gazetted Officer under Section 41 did not arise; and there was no 
opportunity to comply with Section 42 of the NDPS Act Accordingly, accused 
were sentenced to undergo rigorous imprisonment for 10 years and pay a B 
fine of Rs.l lakh each. Hence the present appeal. 
Allowing the appeal, the Court 
HELD:l.l. Witnesses of the seizure were P.W.l - a sweeper engaged in 
the police station and P.W.2 - a cycle mechanic who was carrying on his C 
business in front of the police station. They were examined before the Trial 
Judge. They have not supported the case of the prosecution at all. They were 
declared hostile. Having regard to the testimonies of the witnesses, as also 
various other circumstances as noticed in his judgment, the Sessions Judge 
opined that the likelihood of the informant, Police Officer having prior 
information about the matter cannot be ruled out The Trial Court found that D 
P.W.10, the Station House Officer, in his cross-examination accepted that he 
entertained doubts that the accused had been in possession of contraband and, 
therefore, he intended to comply with the provisions of Section 50 of the NDPS 
Act. The High Court, however, without meeting the reasonings of the Sessions 
Judge pl'oceeded to take the prosecution case as gospel truth and opined that 
neitlrer the provisions of Section 50 of the NDPS Act nor Section 42 thereof E 
were required to be complied with. (395-C-D-E) 
· 1.2. First Information Report did not contain any statement that the 
provisions of Section 50 had been complied with. But the prosecution 
introduced two notices, which were said to have been issued to the accused F 
informing them about their right to get themselves searched either before a 
Magistrate or some gazetted officer. The Trial Court noticed that in the notices 
there had been no mention of the fact that he had formed an opinion that the 
scooter in question contained any contraband goods. Furthermore, date, name, 
residence and age of the officer giving notice had not been disclosed. It had 
furthermore not been mentioned that the accused were informed of their legal G 
right. P. W.3 in his

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