GURBAX SINGH versus STATE OF HARYANA

Citation: [2001] 1 S.C.R. 882 · Decided: 06-02-2001 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
GURBAX SINGH 
v. 
STATEOFHARYANA 
FEBRUARY 6, 2001 
B 
[M.B. SHAH AND K.G. BALAKRISHANAN, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985: 
Sections 52, 55 and 57-Prescribed procedure under-Non-compliance 
C with-Effect on conviction-Accused found carrying poppy straw in a bag-
Sample was taken and seal affixed in the presence of a witness-Sea/ remained 
~--
with witness for I 0 days-Witness stated that seal was made of wood whereas 
""'It., 
the /. 0. stated that it was made of brass-Procedure prescribed under Ss. 52, 
55 and 57 not followed-Trial court convicted accused under Section 15-
D High Court affirmed the conviction-Correctness of-Held : Sections. 52, 55 
and 57 are director;~Violation of these provisions would not ipso facto 
violate trial or conviction-However, such provisions cannot be totally 
ignored-But the investigation is faulty-On the basis of such faulty 
E 
investigation, it is not safe to convict the accused-Conviction of accused set 
). -
aside. 
Section 50--Applicability of-Accused found carrying poppy straw in 
a bag-Accused was not informed of his right to be searched in the presence 
of a Gazetted Officer or Magistrate-Held: Poppy straw is recovered from a 
bag belonging to the accused and not from his person--Therefore, it is not 
F 
necessary to make the search in presence of a Gaze/led Officer or a 
"'J-
Magistrate--Section 50 is applicable only in those cases where search of the 
person is carried out. 
The appellant-accused was found carrying poppy straw in a polythene 
bag. A sample was taken and a seal was affixed in the presence ofa witness. 
The seal remained with the witness for I 0 days. The witness stated that the 
G seal was made of wood while the Investigating Officer stated that it was made 
of brass. The trial court convicted the accused under Section 15 of the Narcotic 
Drugs and Psychotropic Substances Act, 1985. The High Court confirmed 
the conviction. Hence this appeal. 
On behalf of the appellant it was contended that the procedure 
H prescribed under Section 50 of the NDPS Act of informing the accused 
882 
• 
-'>-
-x 
GURABAX SINGH v. STATE OF HARV ANA 
883 
whether sea_rch should be carried out in the presence of a Gazetted Officer A 
or a Magistrate; and that the procedure prescribed under Sections 52, SS 
and S7 was not followed. 
On behalf of the respondent it was contended that that there was no 
question of following procedure prescribed under Section 50 because from 
the person of the accused, nothing was recovered, but from the polythene bag, B 
which he was holding, poppy straw was recovered. 
Allowing the appeal, the Court 
HELD: I. Poppy straw was found from the bag belonging to the appellant 
and not from his person and, therefore, it was not necessary to make an offer C 
for search in the presence of a Gazetted Officer or a Magistrate. Section SO 
of the Narcotic Drugs and psychotropic Substances Act, 1985 would be 
applicable only in those ca_ses where the search of the person is carried out. 
1886-D; 887-C) 
Kalema Tuma v. State of Maharashtra, 11999) 8 SCC 463 and State ofD 
Punjab v. Baldev Singh, [1999) 6 SCC 172, relied on. 
State of Punjab v. Jasbir Singh, [ 1996) I SCC 288, referred to. 
2. May be that the 1.0. had no knowledge about the operation of the 
NDPS Act on the date of the incident as he had recorded the FIR under E 
Section 9/ln8 of the Opium Act. It is true that provisions of Sections 52 and 
57 are directory. Violation of these provisions would not ipso facto violate· 
the trial or conviction. However, 1.0. cannot totally ignore these provisions 
and such failure will have a bearing on appreciation of evidence regarding 
arrest of th.i accused or seizure of the article. In the present case, 1.0. has 
admitted that the seal, which was affixed on the article seized, was handed F 
over to the witness and was kept with him for I 0 days. He has also admitted 
that the parcels were not sealed by the officer-in-charge of the police station 
as required under Section 5S of the NDPS Act. The prosecution has not led 
any evidence whether the Chemical Analyser received the sample with proper 
intact seals. It creates a doubt whether the same sample was sent to the G 
Chemical Analyser. Further, it is apparent that the 1.0. has not followed the 
procedure prescribed under Section 57 of the NDPS Act of making full 
report of all particulars of arrest and seizure to his immediate superior 
officer. The conduct of the witness is unusu

Excerpt shown. Read the full judgment & AI analysis in Lexace.