NDPS conviction upheld: SC says Section 50 not needed for bag search; non-production of bulk contraband not fatal
Case name: Than Kunwar v. State of Haryana
Date of Order: 02 March 2020
Citation: Criminal Appeal No. 2172 of 2011
Bench: Ashok Bhushan, J.; K.M. Joseph, J.
Held: Where contraband is recovered from a bag carried by the accused, Section 50 NDPS Act (personal search before Magistrate/Gazetted Officer) is not attracted; a subsequent personal search, yielding nothing, does not vitiate a proven bag recovery. Non-production of the entire seized contraband in court is not by itself fatal if seizure is otherwise proved and samples with intact seals are produced and duly tested. Failure to associate independent witnesses is not decisive when the prosecution evidence is otherwise trustworthy and efforts to join public witnesses are shown.
Summary: The appellant was intercepted on 10.04.2004 carrying a bag; upon being informed of her right under Section 50, a DSP arrived and the bag search yielded 6.3 kg of opium. Samples were drawn and sent for FSL; the trial court convicted under Section 18 NDPS, and the High Court affirmed. In appeal, the defence argued (i) the DSP could not have been present because his testimony in another case placed him elsewhere around the same time; (ii) the bulk contraband was not produced in court; (iii) Section 50 stood violated because there was also a personal search; and (iv) no independent witnesses were joined though available. The Supreme Court rejected each limb. On Section 50, it reiterated that the mandate pertains to personal search, not to search of a bag, and even if a personal search occurs, its non-compliance cannot invalidate an otherwise lawful recovery from a bag where the personal search produced nothing. On production, the Court clarified that entire bulk need not be exhibited when seizure is proved, samples are produced, seals are intact, and the FSL report supports the prosecution; here, the record showed production of sample, sample seal, and the bag, with no allegation of tampering raised before the courts below. On public witnesses, the evidence showed attempts were made to enlist locals who declined; the courts were entitled to rely on official witnesses whose testimony inspired confidence. The timing discrepancy about the DSP’s presence, viewed in context of lapse of time and overall evidence, did not dent the core case since recovery was from the bag and the legal requirements stood satisfied. A plea to allow the appellant to serve the sentence in another State was left to be pursued before the competent forum.
Decision: Appeal dismissed. Conviction under Section 18 NDPS Act sustained; bail bonds cancelled. The appellant may seek appropriate administrative relief regarding place of incarceration before the competent authority.