Case Note & Summary
The appellant, Rajaram s/o Tulshiram Mane, was convicted by the Special Judge, Omerga, in Special Case (NDPS) No. 03 of 2008 for an offence punishable under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to rigorous imprisonment for five years and a fine of Rs. 10,000, with a default sentence of six months. The case of the prosecution was that on 20.08.2008, PW1 Police Inspector Wadaje of Lohara Police Station received information that the appellant was in possession of ganja. The police party proceeded to the spot, intercepted the appellant, and after following the procedure, allegedly recovered 3 kgs of ganja from his possession. The appellant was arrested and charge-sheeted. The trial court convicted him. The appellant challenged the conviction on the ground that the mandatory provisions of Section 50 of the NDPS Act were not complied with. The High Court examined the evidence of PW1 and PW2, the panch witness. The court noted that PW1 stated that he informed the appellant that his personal search would be taken in the presence of a gazetted officer or a magistrate, but the evidence did not show that the appellant was informed of his right to be searched before such officer. PW2, the panch, did not support the prosecution case and was declared hostile. The court held that the prosecution failed to prove compliance with Section 50, which is mandatory. The conviction was based on the alleged recovery, but without proper compliance, the search was illegal. The court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Right of Accused to be Searched Before Gazetted Officer or Magistrate - Mandatory Compliance - The prosecution failed to prove that the accused was informed of his right under Section 50 to be searched in the presence of a gazetted officer or magistrate before the search was conducted. The evidence of PW1 and PW2 did not establish such communication. Held that non-compliance with Section 50 vitiates the trial and conviction is unsustainable. (Paras 4-6) B) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b) - Conviction for Possession of Ganja - Appreciation of Evidence - The prosecution case relied on seizure of 3 kgs of ganja from the accused. However, the mandatory requirement of Section 50 was not complied with. Held that the conviction cannot be sustained and the accused is entitled to acquittal. (Paras 1-7)
Issue of Consideration
Whether the conviction under Section 20(b) of the NDPS Act is sustainable when the mandatory provisions of Section 50 of the NDPS Act were not complied with, specifically the failure to inform the accused of his right to be searched before a gazetted officer or a magistrate.
Final Decision
Appeal allowed. The conviction and sentence passed by the Special Judge, Omerga, in Special Case (NDPS) No. 03 of 2008 on 29.07.2009 are set aside. The appellant is acquitted of the offence punishable under Section 20(b) of the NDPS Act. The appellant is directed to be set at liberty forthwith, if not required in any other case.
Law Points
- Section 50 NDPS Act
- mandatory compliance
- right to be searched before gazetted officer or magistrate
- failure to inform vitiates trial
- acquittal
