Case Note & Summary
The applicant, Jhamsingh s/o Kedarsingh Jamadar, was convicted by the trial court for possession of 3 kg 200 grams of ganja under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The conviction was upheld by the appellate court. The applicant filed a criminal revision application before the Bombay High Court, Aurangabad Bench, challenging the concurrent findings. The main ground was that the mandatory requirement of Section 50 of the NDPS Act was not complied with, as the applicant was not informed of his right to be searched before a Magistrate or a Gazetted Officer. The High Court examined the record and found that the prosecution witnesses, including the police officers, admitted that no such information was given to the applicant. The court held that Section 50 is mandatory and its non-compliance vitiates the search and the subsequent conviction. The court allowed the revision application, set aside the conviction and sentence, and acquitted the applicant. The court also noted that the fine, if paid, should be refunded to the applicant.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Right of Accused to be Searched Before Magistrate or Gazetted Officer - Mandatory Requirement - The prosecution must prove that the accused was informed of his right to be searched before a Magistrate or a Gazetted Officer; failure to do so renders the search illegal and the conviction unsustainable. (Paras 4-6) B) Criminal Procedure Code, 1973 - Section 397 - Revision - Power of High Court to Interfere - The High Court can interfere in revision if the trial court or appellate court has committed an error of law or jurisdiction, especially when a mandatory provision of law has been ignored. (Para 7)
Issue of Consideration
Whether the conviction under the NDPS Act can be sustained when the mandatory requirement of Section 50 of the NDPS Act, 1985 was not complied with, i.e., the accused was not informed of his right to be searched before a Magistrate or a Gazetted Officer.
Final Decision
The High Court allowed the revision application, set aside the conviction and sentence, and acquitted the applicant. The fine, if paid, was ordered to be refunded.
Law Points
- Section 50 of NDPS Act
- 1985 requires that the accused be informed of his right to be searched before a Magistrate or a Gazetted Officer
- failure to do so vitiates the search and conviction
- the burden is on the prosecution to prove compliance
- the provision is mandatory.
