Case Note & Summary
The case involves four appeals filed by Abdul Rehman @ Haji Ali, Bandu @ Bunty Dagdu Udanshive, Mohammed Afzal @ Afzal Chouda Hayat Qureshi, and Zakir @ Zakir Chikna @ Zakir Chota Shariful Hasan Sayyed against their conviction and sentence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellants were convicted by the Special Judge under the NDPS Act, Greater Bombay, in NDPS Special Case No. 128/2010, for offences punishable under Section 8(c) read with Section 20(b)(ii)(C) and Section 29 read with Section 8(c) of the NDPS Act. They were sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1,00,000 each, with default sentences. The prosecution case was that on 3rd March 2010, API Mohan Mane received information that accused No.1 was involved in drug trafficking. A raid was conducted, and contraband (ganja) was allegedly recovered from the possession of the accused. The appellants challenged the conviction primarily on the ground that the mandatory provisions of Section 50 of the NDPS Act were not complied with, as they were not informed of their right to be searched before a Gazetted Officer or Magistrate. The court examined the evidence, noting that the panch witnesses turned hostile and did not support the prosecution case. The investigating officer's testimony was inconsistent regarding whether the accused were informed of their rights. The court held that the prosecution failed to prove compliance with Section 50, which is mandatory. Consequently, the search and recovery were illegal, and the conviction could not be sustained. The court allowed the appeals, set aside the conviction and sentence, and ordered the appellants to be released forthwith unless required in any other case.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Right of Accused to be Searched Before Gazetted Officer or Magistrate - Mandatory Compliance - The court considered whether the search of the accused was conducted in compliance with Section 50 of the NDPS Act, which requires that the accused be informed of their right to be searched before a Gazetted Officer or Magistrate. The prosecution failed to prove that the accused were so informed, as the panch witnesses turned hostile and the investigating officer's testimony was inconsistent. Held that non-compliance with Section 50 vitiates the search and recovery, and the conviction cannot be sustained. (Paras 1-15) B) Evidence Act, 1872 - Section 114 - Presumption as to Official Acts - Applicability in Criminal Trials - The court noted that while there is a presumption that official acts are regularly performed, this presumption is rebuttable and cannot override the requirement of strict compliance with mandatory provisions like Section 50 of the NDPS Act. The prosecution must lead positive evidence to show compliance. (Paras 10-12) C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 8(c) read with Section 20(b)(ii)(C) and Section 29 - Conviction for Possession and Conspiracy - The appellants were convicted for possession of commercial quantity of ganja and for conspiracy. However, due to the illegal search, the entire prosecution case failed. Held that the conviction and sentence are set aside. (Paras 1-15)
Issue of Consideration
Whether the conviction of the appellants under the NDPS Act is sustainable when the mandatory provisions of Section 50 of the NDPS Act were not complied with, specifically whether the accused were informed of their right to be searched before a Gazetted Officer or Magistrate.
Final Decision
The appeals are allowed. The impugned judgment and order of conviction and sentence dated 5th March 2012 passed by the Special Judge under the NDPS Act, Greater Bombay in NDPS Special Case No. 128/2010 is set aside. The appellants are acquitted of the offences charged. They are directed to be released forthwith unless required in any other case.
Law Points
- Section 50 of NDPS Act requires that accused be informed of their right to be searched before a Gazetted Officer or Magistrate
- Non-compliance renders search illegal
- Burden of proof on prosecution to show compliance
- Conviction cannot be sustained if mandatory provisions not followed
