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Navdeep Singh v. State Of Haryana .
Factual and Procedural Background
On 11-8-1999 Assistant Sub-Inspector Karan Singh (PW-8) received information about a narcotics transaction. After making a diary entry and informing his superiors, he set up a picket with other police officers and Balwan Singh (PW-4). The appellant, travelling on a scooter, was stopped and offered a search before a gazetted officer or a Magistrate. He chose the former. In the presence of the Deputy Superintendent of Police, a search of the scooter yielded 1 kg of charas. The contraband was sealed, a ruqa was dispatched, an FIR was registered, and the appellant was arrested. He was tried, convicted on 18-8-2001, and sentenced on 21-8-2001 by the trial court to ten years’ rigorous imprisonment and a fine of ₹1 lakh (with one year’s additional imprisonment in default). The High Court of Punjab and Haryana dismissed his appeal on 10-12-2008. The present judgment resolves the appellant’s further appeal.
Legal Issues Presented
- Whether the lesser sentencing regime introduced by Act 9 of 2001 (effective 2-10-2001) could be applied to reduce the appellant’s sentence for possessing a quantity below the “commercial” threshold.
- Whether the search violated the mandatory safeguards of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, thereby vitiating the conviction.
- Whether the Court could exercise leniency and award a sentence lower than the statutory minimum on sympathetic grounds.
Arguments of the Parties
Appellant's Arguments
- The quantity seized was below the commercial quantity; after the 2001 amendment, the maximum punishment for such quantity is ten years, so the sentence should be reduced to the period already undergone.
- There was a breach of Section 50 because the investigating officer did not properly apprise the appellant of his right to be searched before a gazetted officer or Magistrate; reliance was placed on Myla Venkateswarlu v. State of A.P. and Vijaysinh Chandubha Jadeja v. State of Gujarat.
- The Court should show sympathy as the appellant is young and an engineer by profession.
Respondent State's Arguments
- The conviction and sentence pre-date 2-10-2001; therefore, the amended sentencing provisions are inapplicable.
- The search involved the scooter, not the appellant’s person, and Section 50 is therefore not attracted; even otherwise the appellant was informed of his rights and consented to a gazetted-officer search.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Myla Venkateswarlu v. State of A.P. (2012) 5 SCC 226 | Clarification of the mandatory nature of Section 50 safeguards during search and seizure under the NDPS Act. | The appellant relied on this decision, but the Court distinguished the present case, holding that Section 50 did not apply because the search was of the scooter, not the person. |
| Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 | Constitution Bench ruling that an accused must be informed of the right to be searched before a Magistrate or gazetted officer. | After examining the notice given to the appellant and his election to be searched by a gazetted officer, the Court found substantial compliance and rejected the appellant’s Section 50 objection. |
Court's Reasoning and Analysis
Issue 1 – Applicability of the 2001 Amendment: The amended sentencing provisions under Section 20 came into force on 2-10-2001. Because the conviction and sentence were imposed before that date, the Court held that the appellant could not claim the benefit of the amendment.
Issue 2 – Alleged Breach of Section 50: Both the trial court and High Court had already found that the search was of the scooter and not of the appellant’s “person,” rendering Section 50 inapplicable. The Supreme Court reviewed the notice issued by PW-3 and observed that the appellant was explicitly asked whether he wished to be searched by a gazetted officer or a Magistrate, and he chose a gazetted officer. The Court emphasised that Section 50 does not prescribe a particular format; the essence is to inform the accused of the statutory right. On these facts, the Court concluded there was no violation.
Issue 3 – Prayer for Leniency: Section 20, as applicable, prescribes a minimum sentence of ten years’ rigorous imprisonment. The Court stated it had no power to impose a sentence below that minimum, regardless of the appellant’s youth or profession.
Holding and Implications
APPEAL DISMISSED; conviction and sentence of ten years’ rigorous imprisonment and ₹1 lakh fine upheld.
Immediate Effect: The appellant continues to serve the statutorily mandated sentence; no modification was granted. Broader Implications: The judgment reaffirms that (a) amendments reducing punishment are not retroactive unless expressly so provided, (b) Section 50 safeguards apply only to personal searches, and (c) courts cannot go below statutory minimum sentences under the NDPS Act. No new precedent was created beyond endorsing existing principles.
Order
1. This appeal is directed against the judgment and order passed by the High Court of Judicature of Punjab and Haryana at Chandigarh in Criminal Appeal No. 1041-SB of 2001 dated 10-12-2008. By the impugned judgment and order, the High Court has dismissed the appeal of the appellant and confirmed the judgment of conviction and the order of sentence passed by the trial court dated 18-8-2001 and 21-8-2001, respectively.
2. The appellant before us, in this appeal, has been convicted for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the Act”, for short) and sentenced to undergo rigorous imprisonment for a period of ten years with a fine of Rs 1 lakh, in default of payment of which he has to undergo rigorous imprisonment for a further period of one year.
3. Briefly stated, the incident occurred on 11-8-1999, when the Assistant Sub-Inspector, Karan Singh (PW 8), upon receipt of information regarding transaction involving narcotic drugs, after recording a diary entry and intimating the superior officers of such, held a picket along with other police officers and Balwan Singh (PW 4). The appellant, who was riding a scooter, was stopped on suspicion. He was given an option to be searched in the presence of a gazetted officer or a Magistrate. The appellant chose the former and accordingly, the search was conducted in the presence of the Deputy Superintendent of Police (“the DSP”, for short), whereupon 1 kg of charas was recovered from the scooter. The sample and the rest of recovered charas were duly sealed in parcels and taken in possession vide separate recovery memos. Ruqa was sent to the police station, on the basis whereof an FIR was registered. Thereafter, the appellant was arrested and the statements of the witnesses were recorded. On completion of the investigation, the appellant was challaned and charges were framed against him.
4. The trial court and the High Court have convicted and sentenced the appellant for being in conscious possession of 1 kg of charas without any permit or licence. It is the correctness or otherwise of the conviction and sentence which is the subject-matter of this appeal.
5. We have heard the learned counsel for the parties to the lis.
6. At the outset, the learned counsel appearing for the appellant would submit that, since the appellant was carrying the contraband substance in quantities lesser than the commercial quantity, the sentence awarded by the trial court and confirmed by the High Court should be modified to the sentence already undergone by the appellant. In support of his submission, he would bring to our notice Section 20 of the Act, as amended by Act 9 of 2001, and would stress upon the fact that the quantity recovered is lesser than the commercial quantity, maximum punishment for which extends up to ten years of rigorous imprisonment.
7. Per contra, the learned counsel appearing for the respondent State brings to our notice that the conviction and sentence passed by the trial court was prior to 2-10-2001 and, therefore, the amended provision would not be applicable to the instant case.
8. We have given our anxious consideration to the abovementioned issue raised by the learned counsel for the appellant. In our opinion, since the amended provision has come into effect from 2-10-2001, the submission of the learned counsel has no merit whatsoever and, therefore, the benefit of the amended provision cannot be extended to the appellant.
9. The learned counsel would also contend that there is a breach of the mandatory provisions of Section 50 of the Act. In furtherance of the said contention, the learned counsel would take us through the evidence of the DSP (PW 3) and the investigating officer (PW 8) inasmuch as to bring out that the appellant was not apprised of his statutory right by PW 8 and thus, the mandatory requirement was not satisfied. The learned counsel in order to substantiate his contention, relied upon the decision of this Court in Myla Venkateswarlu v. State of A.P (2012) 5 SCC 226 and further referred to the observations made by the Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609.
10. We have carefully perused the provisions of Section 50 of the Act. In our opinion, it may not be necessary to extract the whole provision. The trial court and the High Court have noticed the aforesaid submission made before us, at length. On marshalling of facts and appreciation of evidence, they have reached the conclusion that what was searched is the scooter and not the person of the appellant and, therefore, the provisions of Section 50 of the Act would not apply to the present case. We have also looked into the notice issued to the appellant by PW 3, the investigating officer, before the search was made and we note that a substantial question was put across the appellant as to whether he chooses to be searched by a gazetted officer or a Magistrate. The appellant accorded his consent to be searched by a gazetted officer. In fact, the appellant and the scooter were searched by a gazetted officer as per his request.
11. In our opinion, the provisions do not prescribe any set format for such notice. The essence is to apprise the accused of his legal right of being searched either by a gazetted officer or a Magistrate. Here, when the appellant was apprised of his statutory rights under Section 50 by PW 3 and he opted to be searched by a gazetted officer, then he has, by necessary implication, consciously exercised his right. In that view of the matter, we cannot accept the submission of the learned counsel for the appellant that the mandatory provisions of Section 50 of the Act were breached.
12. The learned counsel would contend that we should extend our sympathies to the plight of the appellant since the appellant is a young person and an engineer by profession.
13. As per the amended provision of Section 20 of the Act, the minimum sentence that can be awarded, if there exists an order of conviction under the Act, is ten years and the said term was rightly awarded by the trial court and confirmed by the High Court. We cannot modify the sentence, since the provisions do not permit this Court to award a punishment less than what is prescribed under the Act. In that view of the matter, the aforementioned contention of the learned counsel cannot be accepted by us.
14. In the result, while upholding the decision rendered by the trial court and confirmed by the High Court, we dismiss the appeal. Ordered accordingly.
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