Case Note & Summary
The appellant, Chidi Oscita Okonkowa, was convicted by the Sessions Judge, North Goa, Panaji, in Special Criminal Case No. 41/2014 (NDPS) for possession of 4.90 grams of cocaine, punishable under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was sentenced to two years rigorous imprisonment and a fine of Rs. 50,000. The conviction was based on a search conducted on 17.02.2014 near St. Antony's Chapel, Anjuna, Goa. The appellant appealed on the ground that the mandatory provisions of Section 50 of the NDPS Act were not complied with, as the search was not conducted in the presence of a Magistrate or Gazetted Officer. The appellant's counsel, Mr. T. George John, relied on the Supreme Court judgment in Arif Khan alias Agha Khan v. State of Uttarakhand, AIR 2018 SC 2123, and a recent decision of the Bombay High Court in Ivan Miguel v. State & Another (Criminal Appeal No. 57/2016 dated 12.10.2020), which held that non-compliance with Section 50 is fatal to the prosecution. The Additional Public Prosecutor, Mr. Pravin Faldessai, appeared for the State. The High Court, after hearing arguments, found that the search was conducted without complying with Section 50, as the accused was not informed of his right to be searched before a Magistrate or Gazetted Officer. Consequently, the conviction was set aside and the appellant was acquitted. The court ordered his release unless required in any other case.
Headnote
A) Criminal Law - Narcotic Drugs - Section 50 NDPS Act - Mandatory Search - The appellant was convicted under Section 21(b) of the NDPS Act for possession of cocaine. The High Court held that the search was conducted without complying with Section 50, which requires that the accused be informed of his right to be searched before a Magistrate or Gazetted Officer. Relying on Arif Khan v. State of Uttarakhand, the court found the non-compliance fatal and set aside the conviction. (Paras 3-5)
Issue of Consideration
Whether the mandatory provisions of Section 50 of the NDPS Act were complied with before conducting the search of the accused.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted. Bail bonds cancelled. Appellant to be released unless required in any other case.
Law Points
- Mandatory compliance of Section 50 of NDPS Act
- Search in presence of Magistrate or Gazetted Officer
- Conviction set aside for non-compliance
