Case Note & Summary
The appellants, Rehanabi Sheikh Atiq and Sheikh Sohel Sheikh Atiq, were convicted by the Additional Sessions Judge, Wardha in Special (NDPS) Case 2/2012 for an offence under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 34 of the Indian Penal Code. They were sentenced to rigorous imprisonment for seven years and a fine of Rs.25,000 each. The prosecution case was that Police Inspector Sharif Khan of Ashti Police Station received secret information that a lady and a youth were possessing a military green bag containing ganja at Shirkutni Bus Stop. The police raided the spot, gave notice under Section 50(1) of the NDPS Act, and upon search, recovered ganja from the bag. The appellants challenged their conviction on the ground of non-compliance of Section 50 of the NDPS Act. The court examined the provision and noted that Section 50 applies only to the search of a person and not to the search of a bag or container carried by a person. Since the recovery was from a bag, the mandatory procedure under Section 50 was not attracted. The court held that the conviction was illegal and set aside the judgment of the trial court, acquitting the appellants. The court did not examine other grounds of challenge as the appeal was allowed on this short ground.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search of Person - Applicability - Section 50 applies only to search of a person and not to search of a bag or container carried by a person - The court held that the search of a military green bag containing ganja was not a personal search, and therefore, the requirement of Section 50 was not attracted - The conviction was set aside on the ground that the search was of a bag and not of the person (Paras 3-5).
Issue of Consideration
Whether the mandatory procedure under Section 50 of the NDPS Act was complied with when the search was of a bag and not of the person?
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellants acquitted. Fine, if paid, to be refunded.
Law Points
- Section 50 NDPS Act applies only to personal search
- not to search of bag or container
- Section 50 NDPS Act mandatory for personal search
- non-compliance of Section 50 vitiates conviction only if search is of person
