Consent- memo required to search a suspect: Punjab High court
TITLE: Nand Kishore v State of Punjab
Decided On-: May 22, 2023
CRA-S-4625-SB-2015(O&M)
CORAM: Hon’ble Justice Mr. Haresh Manjua
INTRODUCTION – The conviction and sentence passed by the court of learned Judge Special Court, Pathankot on July 20, 2015, and July 21, 2015, respectively, have been contested in the current appeal. The appellant was found guilty under Section 20 of the NDPS Act, 1985. Defense pleads on Section 50 of the NDPS Act.
FACTS OF THE CASE-
Nand Kishore was apprehended as he approached on foot carrying a bag, lant by the police party led by SI Kuldeep Kumar in the area of Turi Wala Chowk, Police Station Division No. 2, Pathankot. SHO Kuldeep Kumar informed the suspect that he suspected the presence of intoxicating material on him and that a search would be conducted. The suspect could choose to have his search conducted by him, a Magistrate, or a gazetted officer. He had a plastic bag in his right hand and tried to turn around after spotting the police party but was apprehended. The accused executed consent memo Ex.PW2/A to have his search conducted by SHO Kuldeep Kumar. After the consent memo, SI Kuldeep Kumar (PW-2) conducted his search, and 1 Kg Charas was found on him. Consequently, Police Station Division No. 2 in Pathankot filed FIR No. 141 on September 28, 2013, against him in accordance with Section 20/61/85 of the NDPS Act, 1985. According to the judgment and order dated 20.07.2015/21.07.2015, the learned Trial Court found the appellant guilty and sentenced him as stated in para. 1 of this judgment is based on the evidence that was presented.
COURT ANALYSIS AND DECISION
The appellant’s knowledgeable attorney claims that the officer in this case failed to comply with Section 50 of the Act. When requesting to conduct the search of the appellant, he included himself (SI-Kuldeep Kumar PW2) as the search’s in charge. To bolster his argument, he cites a decision made by this court in a previous ruling.
While contending that the circumstances of the current case substantially complied with section 50 of the NDPS Act, learned State counsel disagrees with the arguments made on behalf of the appellant. It is clear from reading the judgment rendered by the court below that the Trial Court neglected to review the “memo of consent.”
Therefore, the appeal is granted. The conviction judgment from July 20, 2015, as well as the sentence order from July 21, 2015, against the appellant, are hereby vacated. Any pending applications will also be dismissed.
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