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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 970 OF 2011

NAVDEEP SINGH   APPELLANT

VERSUS

STATE OF HARYANA                        RESPONDENT

O R D E R

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/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  18.08.2001  and  21.08.2001,  

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 lac, in default of payment  

of which he has to undergo rigorous imprisonment for  

a further period of one year.

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3. Briefly stated, the incident occurred on 11.08.1999,  

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 alongwith 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  

presence of the Deputy Superintendent of Police (“the  

DSP” for short), whereupon one kilogram 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  

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 one kg of Charas without any permit or

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licence. It is the correctness or otherwise of the  

conviction and sentence is the subject matter of this  

appeal.

5. We have heard learned counsel for the parties to the  

lis.

6. At  the  outset,  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  upto  ten  years  of  

rigorous imprisonment.

7. Per  contra,  learned  counsel  appearing  for  the  

respondent-State  brings  to  our  notice  that  the  

conviction and sentence passed by the Trial Court was  

prior  to  02.10.2001  and,  therefore,  the  amended  

provision  would  not  be  applicable  to  the  instant  

case.

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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 02.10.2001, 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)  

in as much 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 Andhra Pradesh, 2012 (5)  

SCC 226 and further referred to the observations made  

by the Constitution Bench in the case of Vijaysingh  

Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC  

609.

10.We  have  carefully  perused  the  provisions  of  the  

Section 50 of the Act. In our opinion, it may not be  

necessary to extract the whole provision.  The Trial

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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 prescribed any  

set  format  for  such  notice.  The  essence  is  to  

appraise  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  

opts 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

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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.

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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.

.......................J.

(H.L. DATTU)

.......................J.

(RANJAN GOGOI)

NEW DELHI; JANUARY 09, 2013.