LexNIRMAL SINGH PEHLWAN @ NIMMA versus INSPECTOR, CUSTOMS, CUSTOMS HOUSE, PUNJAB
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A B [2011] 9 S.C.R. 446 NIRMAL SINGH PEHLWAN @ NIMMA v. INSPECTOR, CUSTOMS, CUSTOMS HOUSE, PUNJAB (Criminal Appeal No. 1857 of 2010) JULY 21, 2011. [HARJIT SINGH BEDI AND GYAN SUDHA MISRA, JJ.] NARCOTIC DRUGS AND PSYCHOTROPIC C SUBSTANCES ACT, 1985: s. 22 read with s. 50 - Right of accused to be informed that he has an option of being searched in the presence of a Gazetted Officer or a Magistrate - Accused found in 0 possession of 2 packets containing 1 kg heroin each - Consent memo signed by him to be searched in presence of a Gazetted Officer - Held: The consent memo cannot be said as informing the accused of his right to be searched in the presence of a Gazetted Officer or a Magistrate, as he was E only given the option to be searched before one of the other - The Officer concerned did not utter a single word as to whether he had informed the accused of his right and he merely took his option as to whether he would like to be searched before a Gazetted Officer or a Magistrate - Thus, there has been complete non-compliance with the provisions F of s. 50 - Conviction of the accused set aside - Customs Act, 1962 - 108. G H CUSTOMS ACT, 1962: s. 108 - Accused found in possession of contraband - Confession made to Customs Officer - Held: In view of decision in Noor Aga's case, the confession was hit by. the embargo placed bys. 25 of Evidence Act- Judgment in Noor Aga's case being the. latest in point of time, it would be prop1er 446 .. •• T • , I • NIRMAL SINGH PEHLWAN @ NIMMA v. INSPECTOR, 447 CUSTOMS, CUSTOMS HOUSE.PUNJAB to follow the 'ratio of the said judgment, particularly, as the A · provisions of s. 50 of the NDPS Act, which are mandatory have also not been complied with - Narcotic Drugs and Psychotropic Substances Act, 1985 - ss. 22 and 50 - Evidence Act, 1872 ~ s. 25. Vijaisingh Chandu Bha Jadeja vs. State of Gujarat 2011 8 (1) SCC 609: 2010 (13) SCR 255 - followed Noor Aga vs. State of Punjab & Anr. 2008 (16) SCC 417: 2008 (10) SCR 379 - relied on. Kanahiya Lal vs. Union of India 2008 (4) SCC 668: 2008 (1) SCR 350 and Raj Kumar vs. Union of India 1990(2) sec 409: 1990 (2) SCR 63 - cited. Case Law Reference: 2010 (13) SCR 255 2008 (10) SCR 379 2008 (1) SCR 350 1990 (2) SCR 63 followed. relied on. cited. cited. Para 6 Para 6 Para 7 Para 7 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1857 of 2010. c D E ! " From the Judgment & Order dated 14.08.2008 of the High F ~ Court of Punjab & Haryana at Chandigarh in Criminal Appeal No. 219-SB of 2003. ; Sanjay Jain, Priyanka Singh, Sidharth Tanwar for the Appellant. RP. Bhatt, Ajay Sharma, M. Khairaity, B. Krishna Prasad for the Respondent. The following order of the Court was delivered G H 448 SUPREME COURT REPORTS [2011] 9 S.C.R. ORDER .. A This appeal is directed against the concurrent judgments of the courts below whereby the appellant has been sentenced to undergo 10 years R.I. and to pay a fine of rupees one lakh and in default to undergo RI for two years for having violated J. B the provisions of Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act'). The facts of the case are as under: c During the course of a joint Naka held on the 4th January, 1999 by a party comprising officials from the Customs Preventive Staff, the Punjab Police and the CIA Staff, Majitha, set up at the T-crossing near Saki Bridge, Ajnala, a Maruti car bearing registration No. PB-02-P-5595 was seen coming from D the opposite side at about 9.40 a.m. There were three occupants in the car and two of them taking advantage of the thick fog at that time ran away whereas the third one, the appellant Nirmal Singh, was apprehended by PW.4 Prem Singh-Superintendent Customs. PW.4 disclosed his identity to E the appellant and told him that as he was suspected to be in possession of some narcotic, he should give his option as to whether he wished to be searched before a Magistrate or a Gazetted Officer. The appellant stated that he would be satisfied if he was searched in the presence of a Gazetted officer. • • F Khazan Singh and Sarup Singh were also called as public witnesses. On a search of the appellant's person two packets of brown powder each weighing 1 kilogram were found lying in his lap. The powder was tested with the aid of a drug testing kit and was found to be heroin. Samples of 5 grams were G drawn fro
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