GHASITA SAHU versus STATE OF MADHYA PRADESH

Citation: [2008] 2 S.C.R. 95 · Decided: 28-01-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

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[2008] 2 S.C.R. 95 
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GHASITA SAHU 
A 
;._ 
V. 
STATE OF MADHYA PRADESH 
(Criminal Appeal No. 184 of 2008) 
JANUARY 28, 2008 
B 
[S.B. SINHA AND V.S. SIRPURKAR, JJ.] 
• 
Narcotics Drugs and Psychotropic Substances Act, 1985: 
ss.42, 50 and 51 - Search of house - Conditions under 
s.42 complied by the Investigating Officer- 17. 750 kg. of ganja c 
recovered from one room - Right of accused to have search 
made in presence of Magistrate or Gazetted officer-Allegation 
of breach of such right- Held : Right is available where search 
is of 'person' of the accused - Since search was of his house, 
there was no breach of any right - Conviction upheld - Courts D 
below awarded sentence of 5 years- Considering that accused 
was middle-aged and coming from poor background, sentence 
of 5 years reduced to sentence already undergone - Sentence/ 
Sentencing - Code of Criminal Procedure, 1973 - s.100. 
The prosecution case was that on receipt of E 
information, the Investigating Officer PW6 searched the 
house of appellant and found 17.750 kgs of Ganja kept in 
a gunny bag from one room. Before the search was taken, 
he gave an option to the appellant to have search in the 
presence of Gazetted Officer. However, appellant did not F " 
opt for such an option and consented to the search by 
search party led by PW-6. Relying on the statement of PW-
6 and PW-1, as also Panchanama, the appellant was found 
guilty and convicted under s.8 r.w. s.20(b)(ii) of Narcotics 
Drugs and Psychotropic Substances Act, 1985. He was G 
directed to undergo Rigorous Imprisonment for a period 
)>-
of 5 years and also pay fine of Rs.20,000/-. High Court 
"""\ 
confirmed the conviction. 
ln appeal to this Court, appellant contended that the 
95 
H 
96 
SUPREME COURT REPORTS 
[2008] 2 S.C.R. -;f-- -
A search itself was illegal as the panchas for the search had 
" 
not supported the same and that they were not the local 
panchas; that he was falsely implicated at the instance of 
police and that the appellant was not informed about his 
right to have search in presence of a Gazetted Officer in 
B terms of s.42 of the Act. 
Dismissing the appeal but modifying the sentence, 
the Court 
HELD: 1. Both the panchas PW-4 and PW5 have not 
,. 
c even been distantly suggested that they were the usual 
panchas and stock witnesses of local police and were 
not residents of the area wherefrom the Ganja was 
recovered. Nothing has been suggested to PW-6 in 
respect of panchas not being local panchas. The 
D investigating officer seems to have taken all precautions 
as per s.100 of Criminal Procedure Code. [Para 4] [98-G, 
H; 99-A, BJ 
2. Very curiously, plea of false implication was not 
suggested to the witness at all. In the absence of any 
E suggestion or material in cross-examination such lame 
plea cannot be accepted. [Para 5] [99-C] 
3. In the examination-in-Chief and the cross-
examination, the witness had very specifically stated that 
appellant was informed about the information received 
F from the informant and was asked if he wanted any 
Magistrate to conduct the search or the police themselves 
could do that. Considering the language, the search of 
the house cannot be said to be illegal in any manner. 
[Para 6] [99-E, F, G] 
G 
4. S.51 of the Narcotics Drugs and Psychotropic 
Substances Act, 1985 specifically provides that the 
provisions of Criminal Procedure Code shall apply in so 
~ 
far as they are inconsistent with the provisions of the Act 
to all warrants, arrest, searches and seizures made under 
H this Act. The right of the search being taken only in 
-t"-
GHASITA SAHU v. STATE OF MADHYA PRADESH 
97 
[VS. SIRPURKAR, J.] 
... 
presence of a Magistrate or a Gazetted Officer is restricted A 
...-
where the search is to be taken of a 'person' of the 
' 
accused. In this case the search was of a house and, 
therefore, all that the investigating officer had to follow 
was the conditions under s.42 of the Act read with s.100 
Cr.P.C. Therefore, the argument that the accused had any B 
right in respect of the aforementioned search and that right 
has been breached is wholly incorrect. [Para 7] [99-H; 
100-A, B] 
State of H.P v. Pawan Kumar (2005) 4 SCC 350 - relied 
on. 
c 
5. Considering that the accused is a middle-aged man 
and comes from the poor background as claimed by the 
counsel, his punishment of five years is modifect to the 
sentence already undergone. The amount of fine is also 
D 
reduced from Rs.20,000/- to Rs.10,000/- and in default

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