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State Of Orissa v. S. Mohanty And Others
Factual and Procedural Background
The respondents—Surendranath Mohanty, Prasanna Kumar Mohanty and Tara Prasad Mohanty—were prosecuted in Sessions Trial Case No. 290 of 1990 before the Court of the Sessions Judge, Puri, for an offence punishable under Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The trial court found them guilty and sentenced each to ten years of rigorous imprisonment and a fine of ₹1 lakh.
Aggrieved, the respondents filed separate criminal appeals in the High Court of Orissa. The High Court allowed the appeals, holding that (i) the search was illegal for want of written information under Section 42(2) NDPS Act, and (ii) there was non-compliance with the mandatory requirement of Section 50 NDPS Act. Consequently, it set aside both conviction and sentence.
The State of Orissa sought special leave to appeal. The Supreme Court condoned the delay, granted leave, heard counsel, and delivered the present order.
Legal Issues Presented
- Whether the search was conducted under Section 41 or Section 42 of the NDPS Act, and the legal effect of non-compliance with Section 42(2) if Section 42 applied.
- Whether the mandatory requirement of Section 50 NDPS Act was attracted to the searches and, if so, whether it was complied with for each respondent.
- Whether the High Court erred in acquitting all three respondents on the grounds of the alleged procedural violations.
Arguments of the Parties
Appellant-State's Arguments
- The raid was authorised by a Deputy Superintendent of Excise who accompanied the team; therefore, the search fell under Section 41, not Section 42, of the NDPS Act.
- In light of the ruling in State of Punjab v. Balbir Singh (1994) 3 SCC 299, even if procedural requirements under the Code of Criminal Procedure were not strictly met, a Section 41 search is not per se illegal and does not vitiate the trial.
- Section 50 requirements did not apply to the recovery from the house jointly possessed by Surendranath and Prasanna; any non-compliance could at most affect Tara Prasad, from whose person the contraband was seized.
Respondents' Arguments
The opinion does not contain a detailed account of the respondents' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Punjab v. Balbir Singh, (1994) 3 SCC 299 | An empowered officer acting under Section 41(2) NDPS Act conducts searches under Sections 100 & 165 CrPC; lack of strict procedural compliance under the CrPC does not automatically render the search illegal or vitiate the trial. | The Supreme Court relied on this case to hold that the raid, conducted by an authorised officer under Section 41, was not illegal despite alleged non-compliance with Section 42(2), thereby rejecting the High Court's contrary view. |
Court's Reasoning and Analysis
1. Statutory Basis of the Search: The Court examined the composition of the raiding party—Deputy Superintendent of Excise (PW 4), Executive Magistrate (PW 5), Sub-Inspector of Excise (PW 6), and support staff. Because an officer empowered under Section 41 accompanied and supervised the search, the Court classified the raid as one under Section 41, not Section 42.
2. Effect of Section 42(2) NDPS Act: Since the raid was under Section 41, the written-information requirement of Section 42(2) was inapplicable. Therefore, the High Court erred in treating the absence of written information as fatal.
3. Application of Balbir Singh: Relying on the Supreme Court’s earlier decision, the Court held that even if the procedural provisions of the CrPC were not strictly followed during a Section 41 search, such deviation does not per se invalidate the search or the trial.
4. Compliance with Section 50 NDPS Act: The contraband recovered from the house was jointly possessed by Surendranath and Prasanna; searches of premises do not attract Section 50. Tara Prasad, however, was searched personally, and the evidence showed he was not informed of his right to be searched before a Gazetted Officer or Magistrate. Therefore, the mandatory requirement of Section 50 was violated only in his case.
5. Consequence for Each Respondent: Because the procedural lapses affected only Tara Prasad, the convictions of Surendranath and Prasanna were valid. The High Court’s blanket acquittal of all three respondents was therefore partly unsustainable.
Holding and Implications
PARTLY ALLOWED: The Supreme Court set aside the High Court’s judgment insofar as it related to Surendranath Mohanty and Prasanna Kumar Mohanty, restoring the trial court’s conviction and sentence against them. Their acquittal was reversed, and they were directed to surrender to serve the remaining sentence. The High Court’s acquittal of Tara Prasad Mohanty, based on non-compliance with Section 50, was implicitly left undisturbed.
Implications: The decision reinforces the distinction between searches under Sections 41 and 42 of the NDPS Act and clarifies that Section 50 applies only to personal searches. While it affirms established precedent rather than creating new law, it underscores the limited circumstances in which procedural lapses vitiate narcotics prosecutions.
Order
1. Delay condoned.
2. Leave granted.
3. Heard learned counsel for the parties.
4. The respondents were tried for committing an offence punishable under Section 25 of the Narcotic Drugs and Psychotropic Substances Act, 1985 in the Court of Sessions Judge, Puri, in ST Case No. 290 of 1990. The Court held them guilty and sentenced each of them to undergo rigorous imprisonment for 10 years and to pay a fine of Rs 1 lakh each.
5. Aggrieved by their conviction and the order of sentence, the respondents filed two separate appeals before the High Court of Orissa. The High Court held that as the search was made under Section 42 of the NDPS Act and the information which the officers of the raiding party had received was not reduced to writing, there was non-compliance with the mandatory requirement of that section and that rendered the search illegal. It further held that for that reason the trial got vitiated and the respondents deserved to be acquitted. The High Court also held that there was no clear and reliable evidence on the basis of which it can be held that the accused were informed about their right of being told that they were entitled to be searched in the presence of a gazetted officer or a Magistrate and thus there was non-compliance with the mandatory requirement of Section 50 of the Act also. Taking this view the High Court allowed the appeals and set aside their conviction and sentence.
6. Challenging the view taken by the High Court, the State has filed these appeals. On consideration of the evidence, we find that the raiding party consisted of the Deputy Superintendent of Excise (PW 4), the Executive Magistrate (PW 5), the Sub-Inspector of Excise (PW 6) and other subordinate staff. While on patrolling duty they received information that Surendranath Mohanty (Respondent 1) was keeping “charas” in his house and was dealing in such narcotic substances. On receiving this information the Deputy Superintendent of Excise authorised the Sub-Inspector to search the house of the respondents. He also went with them and actually supervised the whole raid. Search and seizure were done under his instructions and supervision. Ms Kirti Mishra, learned counsel for the appellants was therefore right in submitting that the raid was under Section 41 of the Act and not under Section 42. The High Court was, therefore, in error in holding that the conviction of the respondents stood vitiated on the ground that there was non-compliance with the mandatory requirement of Section 42(2) of the Act. This Court in State of Punjab v. Balbir Singh (1994) 3 SCC 299 has held that if an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.
7. Brown sugar was found from the house of Surendranath Mohanty and also from the person of Tara Prasad Mohanty. As regards the brown sugar found from the house, the finding is that Surendra and Prasanna were in possession thereof. The necessity of compliance with the mandatory requirement of Section 50, therefore, did not arise in the case of Surendranath and Prasanna. This aspect has been overlooked by the High Court. Tara Prasad as found by the High Court was not informed about his right to be searched in the presence of a gazetted officer or a Magistrate. On consideration of evidence we see no reason to take a different view. Thus, there was non-compliance with the mandatory requirement of Section 50 as regards Tara Prasad only. The High Court was, therefore, wrong in setting aside the conviction of Surendranath and Prasanna on this ground.
8. We, therefore, allow these appeals partly, set aside the judgment and order passed by the High Court so far as respondents Surendranath Mohanty and Prasanna Kumar Mohanty are concerned and restore the judgment and order of sentence passed by the trial court as regards them. Respondents Surendranath Mohanty and Prasanna Mohanty are directed to surrender to custody to serve out the remaining period of sentence.
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