Stating that recovery made in a Narcotic Drugs and Psychotropic Substances Act (NDPS) case in the absence of a Gazetted Officer or an Executive Magistrate has no adverse impact on the probe, a Delhi Court on Friday convicted a Nigerian man for possessing 104 grams of drugs.
“The argument of the counsel for accused that the accused has to be compulsorily taken before a Magistrate or a Gazetted officer before conducting a personal search in pursuance of the secret information and failure to do so will vitiate the proceedings, cannot be accepted,” Additional Sessions Judge Rajesh Kumar Singh said.
Past order differs
Another trial court had recently said that it is mandatory to make recovery in such cases in the presence of a Gazetted Officer or an Executive Magistrate.
“As no Gazetted Officer or Magistrate was present at the time of recovery of the contraband, the said recovery stands vitiated. This was clearly laid down by the apex court and followed by the Delhi High Court,” Additional Sessions Judge Sanjay Bansal had said while acquitting an accused in similar case.
“The Supreme Court ruling in Arif Khan vs. State of Uttarakhand has held that even in cases where the accused refuses to opt for his search in the presence of a Gazetted Officer or Magistrate, the police official concerned shall cause such Gazetted Officer or Magistrate to join the recovery proceedings,” Mr. Bansal had further said.
Current case
In the current case, Delhi Police Crime Branch had arrested the accused, Izuchukwu Joseph, on a tip-off from Chhatarpur in 2015. He was also booked on charges of travelling on a forged visa. The court convicted him for this offence as well.
“The prosecution has proved that on December 18, 2015, the accused was apprehended and commercial quantity of drugs weighing 105.27 grams (104 grams according to the seizure memo) was recovered from his possession. He was in possession of drugs in contravention of Section 8 (c) of the NDPS Act 1985. He thereby committed the offence punishable under Section 21 (c) of NDPS Act,” the Judge said.
