Holding

The right to have a search conducted in the presence of a magistrate or gazetted officer under the NDPS Act applies only when the search is of the accused's person, not of his house; consequently the house search was lawful and the conviction was upheld.

Summary

Ghasita Sahu was convicted under the NDPS Act for possession of 17.75 kg of ganja after his house was searched by the investigating officer, who offered him the option of a search in the presence of a gazetted officer, which he declined. The appellant challenged the legality of the search, arguing that the panchas present were not local, that he was not informed of his right to a magistrate or gazetted officer, and that he was falsely implicated. The Supreme Court examined the testimony of the panchas and the investigating officer, finding that all procedural requirements of Section 42 of the NDPS Act read with Section 100 of the Cr.P.C. were complied with. It held that the right to a magistrate or gazetted officer applies only when the search is of the accused’s person, not of his house, and therefore the search was lawful. The conviction was upheld, but the Court reduced the fine and modified the sentence in view of the appellant’s age and economic background.

Issues considered

The legality of a house search conducted without a magistrate or gazetted officer under Sections 42, 50 and 51 of the NDPS Act.
Whether the right to have a search in the presence of a magistrate or gazetted officer applies only to searches of the accused's person.
The effect of non‑local panchas on the validity of the search.
The validity of the conviction under Section 8 read with Section 20(b)(ii) of the NDPS Act.
The appropriateness of the sentence in the circumstances of the appellant.

Legislation cited

Code of Criminal Procedure, 1973s. 100
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(ii), s. 42, s. 50, s. 51, s. 8

Subjects

NDPS Actsearch and seizurehouse searchright to presence of magistratepanchasillegal searchconvictionsentencingCriminal Procedure Code

Judgment

[2008] 2 S.C.R. 95
-*"°
- ;._
GHASITA SAHU
V.
A

STATE OF MADHYA PRADESH
(Criminal Appeal No. 184 of 2008)
JANUARY 28, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]

Narcotics Drugs and Psychotropic Substances Act, 1985:
• ss.42, 50 and 51 - Search of house - Conditions under
c
s.42 complied by the Investigating Officer- 17. 750 kg. of ganja
recovered from one room - Right of accused to have search
made in presence of Magistrate or Gazetted officer-Allegation
of breach of such right- Held : Right is available where search
is of 'person' of the accused - Since search was of his house,
there was no breach of any right - Conviction upheld - Courts D
below awarded sentence of 5 years- Considering that accused
was middle-aged and coming from poor background, sentence
of 5 years reduced to sentence already undergone - Sentence/
Sentencing - Code of Criminal Procedure, 1973 - s.100.
The prosecution case was that on receipt of E
information, the Investigating Officer PW6 searched the
house of appellant and found 17.750 kgs of Ganja kept in
a gunny bag from one room. Before the search was taken,
he gave an option to the appellant to have search in the
presence of Gazetted Officer. However, appellant did not F "
opt for such an option and consented to the search by
search party led by PW-6. Relying on the statement of PW-
6 and PW-1, as also Panchanama, the appellant was found
guilty and convicted under s.8 r.w. s.20(b)(ii) of Narcotics
Drugs and Psychotropic Substances Act, 1985. He was G
directed to undergo Rigorous Imprisonment for a period
of 5 years and also pay fine of Rs.20,000/-. High Court
)>-
"""\ confirmed the conviction.
ln appeal to this Court, appellant contended that the
95 H
96 SUPREME COURT REPORTS [2008] 2 S.C.R. -;f-- -

A search itself was illegal as the panchas for the search had
not supported the same and that they were not the local "
panchas; that he was falsely implicated at the instance of
police and that the appellant was not informed about his
right to have search in presence of a Gazetted Officer in
B terms of s.42 of the Act.
Dismissing the appeal but modifying the sentence,
the Court
,.
HELD: 1. Both the panchas PW-4 and PW5 have not
c even been distantly suggested that they were the usual
panchas and stock witnesses of local police and were
not residents of the area wherefrom the Ganja was
recovered. Nothing has been suggested to PW-6 in
respect of panchas not being local panchas. The
investigating officer seems to have taken all precautions
D as per s.100 of Criminal Procedure Code. [Para 4] [98-G,
H; 99-A, BJ
2. Very curiously, plea of false implication was not
suggested to the witness at all. In the absence of any
E suggestion or material in cross-examination such lame
plea cannot be accepted. [Para 5] [99-C]
3. In the examination-in-Chief and the cross-
examination, the witness had very specifically stated that
appellant was informed about the information received
F from the informant and was asked if he wanted any
Magistrate to conduct the search or the police themselves
could do that. Considering the language, the search of
the house cannot be said to be illegal in any manner.
[Para 6] [99-E, F, G]
G 4. S.51 of the Narcotics Drugs and Psychotropic
Substances Act, 1985 specifically provides that the
provisions of Criminal Procedure Code shall apply in so ~

far as they are inconsistent with the provisions of the Act
to all warrants, arrest, searches and seizures made under
H this Act. The right of the search being taken only in
-t"- GHASITA SAHU v. STATE OF MADHYA PRADESH 97
[VS. SIRPURKAR, J.]

... presence of a Magistrate or a Gazetted Officer is restricted A
...-' where the search is to be taken of a 'person' of the
accused. In this case the search was of a house and,
therefore, all that the investigating officer had to follow
was the conditions under s.42 of the Act read with s.100
Cr.P.C. Therefore, the argument that the accused had any B
right in respect of the aforementioned search and that right
has been breached is wholly incorrect. [Para 7] [99-H;
100-A, B]
State of H.P v. Pawan Kumar (2005) 4 SCC 350 - relied
on. c
5. Considering that the accused is a middle-aged man
and comes from the poor background as claimed by the
counsel, his punishment of five years is modifect to the
sentence already undergone. The amount of fine is also
reduced from Rs.20,000/- to Rs.10,000/- and in default of D
payment of fine, the accused would undergo further
period of Rigorous Imprisonment for six months. [Para 8]
[100-E]
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
E
No. 184 of 2008.
From the final Judgment and Order dated 22.7.2005 of
the High Court of Madhya Pradesh at Jabalpur in Crl. A. No.
1344/2004
Sangeeta Kumar and Shivangi Thagala for the Appellant. F

Govind Goel, C.D. Singh, Maru Sagar Samanta Ray,
Vairagya Vardhan, Sunny Choudhary and Ram Naresh Yadav
for the Respondent.
The Judgment of the Court was delivered by G

,. V.5. SIRPURKAR, J. 1. Leave granted.
i4
., 2. The appellant herein challenges his conviction for the
offence under Section 8 read with Section 20(b)(ii) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (hereinafter H
98 SUPREME COURT REPORTS [2008] 2 S.C.R. ,..__

A referred to as "NDPS Act") recorded by the Trial Court and
confirmed by the High Court.
3. On the prior information Arun Pandey (PW6) searched
the house of the appellant and found 17. 750 Kgs. Of Ganja kept
in a gunny bag from one room. Before the search was taken,
8 the Investigation Officer had completed all the formalities as
per Section 42 of NDPSAct. At the time of search, the appellant
was apprised of the information as also the proposed search
and was also given an option to have a search in presence of a
Gazetted officer. However, the appellant had not opted such an
C option and consented to the search by the search party led by
Investigating Officer Arun Pandey (PW6). The Ganja (17.750
Kg.) was seized from one of the rooms and after samples were
drawn, rest of it was sent to Malkhana for the safe custody. The
sample packages were sent to Forensic Science Laboratory
D wherein it was confirmed that it was Ganja. The investigation
having been completed, the appellant was charge-sheeted. The
appellant pleaded not guilty. However, relying on the statement
of Arun Pandey (PW6) and Shiv Kumar (PW1) as also the
documents including the Panchanama, the appellant was found
E guilty and was convicted of the offences charged. He was
directed to undergo Rigorous Imprisonment for a period of five
years. He was also directed to pay a fine of Rs.20,000/- in default
rigorous imprisonment of one year. This conviction was
challenged before the High Court. However, the High Court, after
F going through the evidence confirmed the conviction and the
sentence, necessitating the present appeal.
4. It was firstly contended by the counsel for the appellant
that the search itself was illegal as the Panchas for the search
firstly had not supported the same and secondly they were not
G the local panchas. We were, therefore, taken through the
evidence of the two Panchas Raju (PW4) and Sanju Tiwari
(PW5). We have carefully gone through their evidence. Both of
them have not supported the prosecution inasmuch as they have
even refused to identify the accused. There is nothing in their
H evidence to suggest that they were not local panchas. They have
'
~ GHASITA SAHU v. STATE OF MADHYA PRADESH 99
~
[VS. SIRPURKAR, J.]

>- not even been distantly suggested that they were the usual A
panchas and stock witnesses of local police and were not
residents of the area wherefrom the Ganja was recovered.
Learned counsel tried to rely on the evidence of Arun Pandey
(PW6). However nothing has been suggested to him in respect
of panchas not being local panchas. The investigating officer B
seems to have taken all precautions as per Section 100 of
~ Criminal Procedure Code. Hence the contention is rejected.
~
5. Learned counsel secondly suggested that in fact this
accused had met with an accident with the police jeep driven
by Arun Kumar (PW6) and, therefore, he was falsely implicated c
at the instance of the police. Very curiously this is not suggested
to the witness at all. In the absence of any suggestion or material
in cross-examination such lame plea cannot be accepted.
_; 6. Lastly, the learned counsel tried to suggest that the
~
appellant was not given any idea about his right to have the D
search taken in presence of a Gazetted Officer in terms of
Section 42 of the Act. We have carefully seen the evidence. To
a specific question: "what did you say to the accused at the
~
place of occurrence?", the answer by the witness is: "I told him
that we have an information from Mukhbir that there is some E
Ganja hidden in your house and I have to take your search. If
you want the search to be conducted in the presence of some
gazetted officer or in the presence of a Magistrate or you had
no objection if I conduct the search myself'. Before that even in
the examination-in-chief the witness had very specifically stated F
"Ghasita Sahu was informed about the information received from
r the informant and it was asked from him if he wanted any
Magistrate to conduct the search or the police themselves could
have done that". Learned counsel wanted to suggest that this
was not the way to inform the accused of his right. Unfortunately, G
no such specific question was put to the witness and in our
opinion considering the language, the search of the house

.,
)r·
cannot be said to be illegal in any manner.
~

7. In the first place, there is no question in this case, of any
such right of the accused. Section 51 of the Act specifically H
...
100· SUPREME COURT REPORTS [2008] 2 S.C.R. "i--
'
.L__

A provides that the provisions of Criminal Procedure Code shall A I

apply in so far as they are inconsistent to the provisions of the
Act to all warrants, arrest, searches and seizures made under
this Act. The right of the search being taken only in presence of
a Magistrate or a gazetted officer is restricted where the search
B is to be taken of a "person" of the accused. In this case the
search was of a house and, therefore, all that the investigating
officer had to follow was the conditions under Section 42 of the
Act read with Section 100 Cr.P.C .. Therefore, the argument that 'f
the accused had any right in respect of the aforementioned
c search and that right has been breached is wholly incorrect. I?
The law is now settled that this condition under Section 50
applies only where the search is of a "person" of accused [See
State of H.P. v. Pawan Kumar [(2005) 4 sec 350]. In this case
the search was not of the person but of his house.
D 8. However, it is pointed out by the learned counsel that
the quantity of Ganja was less than the commercial quantity
though more than the small quantity and that the accused has
all through been behind the bars after his arrest and he has
,..
almost completed four years in jail. Considering that the accused
E is a middle-aged man and comes from the poor background
as claimed. by the counsel, we would chose to modify his
punishment of five years to the sentence already undergone.
We also reduce the amount of fine from Rs.20,000/- to
Rs. 10 ,0001- and in default of payment of fine the accused would
F undergo further period of Rigorous Imprisonment for six months.
Barring this modification, the appeal is dismissed.
--f·
D.G. Appeal dismissed.