LexUNION OF INDIA versus SHAH ALAM & ANR.
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[2009l'9 S.C.R. 1118 A UNION OF INDIA v. } _. SHAH ALAM & ANR. (Criminal Appeal No. 1158-1159 of 2004) B JUNE 11,2009 [B. SUDERSHAN REDDY AND AFTAB ALA~, JJ.] >-- r ·t- I .. Narcotic Drugs and Psychotropic Substances Act, 1985 - s.50, s.8 rlw 21 - Allegation of illegal possession of 100 c grams of heroin by respondents - Body search of respondents, packets of heroin found in shoulder bags carried by them - Conviction u/s. 8121 and sentenced to rigorous imprisonment for 10 years with fine - However, acquittal by High Court - Interference with - Held: Not called for- Alleged D recovery of heroin from respondents in violation of s. 50 - Non- ,,, examination of independent witnesses of search and recovery - More so, respondents already served 415th of the maximum permissible punishment for the offence as amended by Act 9 of 2001., E Respondents were convicted uls. 8 rlw s. 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 , for illegal, possession of 100 gms. heroin and were I ~ r sentenced' to rigorous imprisonment for 10 years and fine , . F of Rs. 1 lakh. However, they were acquitted uls. 8 r/w s. 29. High Court set aside the order of trial court; however, upheld the acquittal u/s. 8 r/w s. 29. Hence the present appeal. Dismissing the appeal, the Court G HELD: 1.1. Under s. 21 of the Narcotic drugs and i- Psychotropic Substances Act, 1985 as it stood in 1994 "' when the occurrence took place, the sentence of rigorous imprisonment for ten years and fine of rupees one lakh "' H 1118 l UNION OF INDIA v. SHAH ALAM & ANR. 1119 was the minimum punishment for illegal possession of A 100 grams of heroin. It has now become tbe maximum permissible punishment as the law stands today, by Amendment Act 9 of 2001. Having regard to the way the Act has been amended by the Legislature and the graded form it has come to assume both in regard to the B quantities of narcotics and the punishments.it would not have been wrong for this Court to decline to interfere in this matter on the ground that the respondents have already served 4/5th of the (now) maximum permissible. punishment for the offence. (Para 6] [1122-E-G] c 1.2. From the evidence of the complainant, PW1 and the seizure memo, it is evident that the two respondents were subjected to a body search in course of which packets of heroin were found in the shoulder bags carried by them and were recovered from there. [Para 9] D [1125-E-F] 1.3. On the facts of the case, it is found that the alleged recovery of heroin from the respondents was made in complete: violation of the provisions of section E 50 of the Act. Apart from this the non-examination of the two independent witnesse' of the search and recovery was another grave omission by the prosecution. A formal petition for discharge of the two witnesses was filed by the prosecution before the trial court and it is not that F they were simply not produced before the court. Therefore, it is satisfied that the High Court took the correct view of the matter and the judgment under appeal does not suffer from any infirmity. [Paras 10 and 11] [1126-D-F] Di/ip and Anr. v. State of M.P. (2007) 1 SCC 450, relied on. State of H.P. vs. Pa wan Kumar (2005) 4 SCC 350, referred to. H 1120 SUPREME COURT REPORTS [2009] 9 S.C.R. A Case Law Reference: ~ (2005) 4 _sec 350 Referred to. Para 8 (2001) 1 sec 450 Relied on. Para 9 B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 1158-1159 of 2004. From the Judgment & Order dated 22.11.2002 and t- ..i 26.02.2003 of the High Court of Judicature at Allahabad at Lucknow Bench, Lucknow in Crl. Appeal No. 523 of 2000 and c Crl. Misc. Correction Appln. No. 1093 of 2003 in Cri. Appeal No. 523 of 2000. S.N. Terdal, S. Wasim A Qadri and Sadhana Sandhu (for Sushma Suri), for the Appellants. D Nagendra Rai, R.K. Gupta, AB. Siddiqui, Arun Yadav, t- Shekhar Kumar and Bihari Trigunayat for the Respondents. The Judgment of the Court was delivered by E AFTAB ALAM, J. 1. The two respondents Shah Alam and Mazzum Haq were held guilty of illegally possessing 100 grams of heroin each and were accordingly convicted by the trial court under Section 8 read with Secti6n 21 of the Narcotic Drugs and ~ · Psychotropic $ubstances Act, 1985 and sentenced to undergo ., F rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh each and in default to undergo rigorous imprisonment for a f
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