Case Note & Summary
The appellant, Gangaram s/o Jairam Chaudekar, was convicted under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) by the learned Joint District Judge and Additional Sessions Judge, Nanded, in Special (NDPS) Case No. 3/1997, and sentenced to three years' rigorous imprisonment and a fine of Rs. 10,000. The conviction was based on the alleged recovery of 5 kg of Ganja from his possession at the S.T. stand of village Jamb on 9 September 1996. The prosecution case was that PW 1 API Rajendra More received a telephonic message that the appellant had been apprehended by ASI Bhurewar on suspicion of possessing Ganja. PW 1 then contacted the Tahasildar, called panchas, and proceeded to the spot. The appellant was produced before them, and after being informed of the proposed search, he gave no objection. The search yielded Ganja, samples were taken, and the appellant was arrested. The trial court convicted him. On appeal, the Bombay High Court examined the compliance of Section 50 of the NDPS Act, which mandates that before conducting a personal search, the accused must be informed of his right to be searched before a Gazetted Officer or a Magistrate. The court noted that the evidence of PW 1 and PW 2 (panch) only stated that the accused was informed about the proposed search and gave no objection, but there was no mention that he was informed of his right under Section 50. The court held that mere giving of no objection does not amount to compliance with Section 50. The prosecution failed to prove that the accused was made aware of his legal right. Consequently, the conviction was set aside, and the appellant was acquitted. The court also noted that the fine, if paid, should be refunded.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Mandatory Compliance - Search of Person - The court considered whether the accused was informed of his right to be searched before a Gazetted Officer or Magistrate as required under Section 50 of the NDPS Act. The prosecution failed to prove that the accused was made aware of this right. The evidence showed that the accused merely gave no objection for search by the police, which does not amount to compliance. Held that non-compliance with Section 50 is fatal to the prosecution case and the conviction cannot be sustained (Paras 8-10).
Issue of Consideration
Whether the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 were complied with before conducting the personal search of the accused, and if non-compliance vitiates the conviction.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted. Fine, if paid, to be refunded.
Law Points
- Section 50 of NDPS Act
- 1985
- mandatory compliance
- right to be searched before gazetted officer or magistrate
- substantial compliance
- prejudice
- conviction set aside
