State Of Orissa vs S. Mohanty And Ors.

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 S.T. 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 N.D.P.S. Act and the information which the officers of the raiding party had received was not reduced into 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 accused were informed about their right of being told that they were entitled to be searched in 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 Deputy Superintendent of Excise (P.W. 4), Executive Magistrate (P.W. 5), Sub-Inspector of Excise (P.W. 6) and other subordinate staff. While on patrolling duty they received information that Surendranath Mohanty (respondent No. 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 of the mandatory requirement of Section 42(2) of the Act. This Court in State of Punjab v. Balbir Singh, 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 Cr.P.C. namely Sections 100 and 165, Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. 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 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 of the mandatory requirement of Section 50 as regards Tara Prasad only. The High Court was, therefore, wrong in setting aside 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.