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2023 DIGILAW 1268 (PNJ)

Vinod Kumar v. State of Punjab

2023-04-11

SUDHIR MITTAL

body2023
Judgment Mr. Sudhir Mittal, J. This application has been filed for suspension of remaining sentence of the applicant, who has been convicted and sentenced as under:- Under Section Sentence (R.I.) Fine (in Rs.) In Default (RI) 18 of NDPS Act, 1985 10 years 1,00,000/- 02 years (RI) 1. Learned counsel for the applicant has submitted that although the applicant does not fulfill the requirements of Daler Singh vs. State of Punjab, 2007 (1) RCR (Criminal) 316, on merits his sentence deserves to be suspended as Section 50 of the NDPS Act, 1985 has not been complied with. 2. The argument is that according to the FIR, the petitioner was apprehended by the Investigating Officer on an apprehension that he was carrying some narcotic substance. Thereafter, personal search was conducted in the absence of a Gazetted Officer. The applicant was also found carrying a polythene bag and before opening the same, a Gazetted Officer was called. A Gazetted Officer should have been called even when personal search of the petitioner was conducted as is evident from judgment dated 28.02.2014 passed by the Supreme Court in Criminal Appeal No.78 of 2005, State of Rajasthan vs. Parmanand and another. Thus, the conviction is bad in law and the remaining sentence deserves to be suspended. 3. Learned State counsel submits that it was a case of chance recovery and Section 50 of the NDPS Act, 1985 need not be followed in such cases as has been held by the Supreme Court in Gurjant Singh @ Janta vs. State of Punjab, 2013(4) R.C.R. (Criminal) 874. 4. A perusal of the judgment in Parmanand (supra) shows that if a personal search is conducted before or after the contents of a bag being carried by the accused are searched, Section 50 of the NDPS Act, 1985 is required to be complied with. Gurjant Singh (supra) cannot apply to the present case as it cannot be said that the applicant was searched in the normal course of searching for bad elements. The Investigating Officer had specifically told the petitioner that he needed to carry out a personal search as he apprehended that the applicant was carrying some intoxicating material. Thus, it appears that Section 50 of the NDPS Act, 1985 has been violated in this case and the conviction may not stand scrutiny. 5. The Investigating Officer had specifically told the petitioner that he needed to carry out a personal search as he apprehended that the applicant was carrying some intoxicating material. Thus, it appears that Section 50 of the NDPS Act, 1985 has been violated in this case and the conviction may not stand scrutiny. 5. Accordingly, the application is allowed and sentence of the applicant is suspended during the pendency of the appeal. He is ordered to be released on bail on his furnishing bail and surety bonds to the satisfaction of the Chief Judicial Magistrate/Duty Judicial Magistrate, concerned.