Delhi HC Reiterates, “Lack of Independent Witness Does Not Vitiate the Prosecution’s Case”

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Introduction

Section 50 of the NDPS Act, 1985 stipulates search of the Accused in the presence of a Gazetted Officer or a Magistrate. This provision is a mandatory procedural provision and non-compliance of the same could vitiate the Prosecution’s case. The present case deals with the application of Section 50 when the contraband is in a bag carried by the Accused and not in-person. 

Brief Facts

The appeal arises from a judgment of a Trial Court convicting the Appellant under the Narcotic Drugs and Psychotropic Substances Act, 1985 (“NDPS Act”). Based on the information received a raiding team was constituted. The team apprehended the Appellant and explained his legal right to be searched. Upon searching the Appellant, 600 grams of heroin were recovered. Samples were sent for testing and it was confirmed as heroin. Where after a trial was conducted and the Appellant was found guilty of an offence punishable under Sec. 21(c) of the NDPS Act. 

Appellant’s Arguments

The Appellant’s contentions are three-fold. First, lack of independent witness and hence conjured case by the police officials. Secondly, the Appellant could not have travelled from Rajasthan with the contents of the bag visible. No tickets or phone recovered from the Appellant. Lastly, the provision of Sec. 50 of the NDPS Act was not complied with. Section 50 requires an Accused to be searched in from of a Gazetted Officer or a Magistrate.  

State’s Arguments

On the contrary, it was submitted that the absence of an independent witness is not prejudicial to the Prosecution’s case. Concerning Sec. 50, it was contended that the same was not applicable. It was submitted that the contraband was recovered from the bag carried by the Appellant and not the Appellant. 

Court’s View

The Court referred to the deposition of the witnesses before the Trial Judge. Concerning independent witness, the Court referenced Kalpnat Rai v. State, (1998) AIR SC 201. Therein it was observed that ‘evidence of police officer’ cannot be disregarded merely because it is not supported by an independent witness. The Court found that there was no inconsistency in the testimony of the official witness and the same was recorded. 

In regards to the application of Section 50, the Court observed that the Appellant was duly informed of his right to be searched by a Gazetted Officer or a Magistrate. Only when the Appellant declined, he was searched in the absence of a Gazetted Officer or a Magistrate. 

The Right of a suspect to be searched in presence of a Gazetted Officer or a Magistrate is recognized by the Court in Innocent Uzoma v. State, Crl. A. 139/2017, decided on 14.01.2020. The contention of the Respondent State that compliance of Section 50 as not mandatory when the contraband was in a bag carried by the Appellant was not accepted by the Court. The Court referred to the State of Rajasthan v. Parmanandand & Anr. (2014) 5 SCC 345. Therein it was stated that Section 50 will have an application even when the contraband is not in-person of the Accused. 

Court’s Decision

The Court concluded that the Prosecution established the case beyond a reasonable doubt. Accordingly, the appeal was dismissed.


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