Need To Remove Uncertainty Regarding Time Of Preparation Of Consent/Non-Consent Memo Qua Compliance Of S. 50 NDPS Act: P&H High Court

The bench of Justice Pankaj Jain observed that in order to remove the uncertainty w.r.t. this important aspect of the investigation, Investigating Agencies need to be more proactive and the investigation needs to be more robust.

In fact, Justice Jain also suggested the State Governments to come up with some web portal on which the consent memo/non-consent memo qua compliance of Section 50 can be uploaded at the time the same is executed and such uploading of the memo generates some unique ID number which can be utilized as a reference at the time of registration of FIR to be related later on which will be cogent evidence at least to prove the place, date and time where and when such memo was uploaded.

The bench, however, added that this is only an illustrative measure and that the prosecution Agency may evolve any such measure with an objective to weed out the chance of false implications/undeserved acquittal so that the real culprit gets a conviction and the innocent is not falsely implicated.

It may be noted that Section 50 of the NDPS Act mandates the Searching Officer to inform the accused (from whom contraband is allegedly recovered) about his right to be searched before a Gazetted Officer/ Magistrate but if he chooses not to exercise that right, then the empowered officer can conduct the search of such suspect without producing him before a Gazetted Officer/ Magistrate.

The Court made these observations while dismissing an appeal moved by an NDPS Act Accused (convicted under Section 15 of the Act) challenging his conviction.

The case in brief

The accused (Parkash Singh) was the driver of the truck from which allegedly poppy-husk weighing 12 kgs. 200 grams was recovered. From his personal search, currency notes amounting to Rs.11080/- were recovered.

The accused made a case that the consent memos (qua section 50 NDPS act) recorded at the time of search and seizure had FIR number written on them and hence, mentioning of the same even prior to registration of FIR itself would be a circumstance to raise doubt w.r.t. the investigation carried out by the agencies.

It was further argued by his counsel that this shows that even prior to a search, the Investigating Authorities were sure that the contraband will be recovered leading to the registration of FIR which clearly points towards false implication of the appellant at the hands of the agencies.

It was also pleaded that there was no presence of an independent witness

On the other hand, the counsel for the state counsel argued that from a bare perusal of the consent memos, it is evident that at the time of preparing the consent memos blank space was left which was later on filled after the FIR number was assigned on Ruqa.

The Court's observations

At the outset, the Court rejected the argument regarding the absence of an independent witness as it noted that it is a matter of common knowledge that independent witnesses seldom join such proceedings.

Further, with regard to the argument pertaining to the mentioning of details of FIR on the consent memo and the non-consent memo prepared on the spot, the Court said that it was without merit.

“Mere mentioning of the FIR number in the documents ipso facto cannot lead to the conclusion that the same have been prepared at a later stage. In the absence of any question put to the Investigating Officer or the Gazetted Officer that the documents were not prepared by them at the spot, the mere mentioning of FIR number in the documents cannot be held to be fatal to the prosecution,” the Court said.

However, the Court did add that Section 50 of the NDPS Act is mandatory and non-compliance thereof can lead to the acquittal of an accused and that wherever personal search is to be made, consent/non-consent memos under Section 50 are prepared prior to the registration of FIR.

“In some cases, the plea of consent memos having been prepared after registration of FIR for carrying details of FIR leads to acquittal and in some as in the present case it is held to be inconsequential,” the Court remarked.

Therefore, the Court suggested the state to take steps to remove this uncertainty.

With this, the appeal was dismissed and the order of conviction passed by the Special Judge, Gurdaspur was upheld.