Case Note & Summary
The appellants, Smt. Aminbi Shaikh Husain and Shri Rafik @ Bhola Abdul Sattar Pathan, were convicted by the Trial Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of brown sugar and sentenced to rigorous imprisonment for 10 years. They appealed to the Bombay High Court. The prosecution case was that based on information, the Investigating Officer along with a panch and police party apprehended the accused. The accused were asked if they wanted to take search of the raiding party, which they declined. Upon search, brown sugar weighing 7 gms was recovered from one accused and 1 gm 400 Mlg. from the other. The Trial Court convicted them. On appeal, the High Court examined the 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 court noted that the Investigating Officer had asked the accused if they wanted to take search of the raiding party, which was a sufficient offer and the accused refused. The court held that this amounted to compliance with Section 50. The court also considered the quantity of brown sugar recovered, which was commercial quantity, attracting enhanced punishment. The High Court found no merit in the appeal and dismissed it, upholding the conviction and sentence.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search and Seizure - Right of Accused to be Searched Before Gazetted Officer or Magistrate - The prosecution must prove that the accused was informed of his right to be searched before a Gazetted Officer or Magistrate. However, if the accused refuses such offer, the search is valid. In this case, the Investigating Officer asked the accused if they wanted to take search of the raiding party, which was declined. The court held that this amounted to compliance with Section 50, as the accused were given the option and they refused. (Paras 4-5) B) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 21 - Commercial Quantity - Brown Sugar - The quantity of brown sugar recovered (7 gms and 1 gm 400 Mlg.) falls within the definition of commercial quantity under the NDPS Act, attracting enhanced punishment of 10 years R.I. The court upheld the sentence of 10 years R.I. imposed by the Trial Court. (Para 6) C) Criminal Law - Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Applicability to Bag or Container - The requirement of Section 50 applies only to search of the person, not to a bag or container carried by the accused. In this case, the brown sugar was recovered from the possession of the accused, and the court did not specifically address whether it was from the person or a bag, but upheld the conviction. (Para 5)
Issue of Consideration
Whether the conviction under the NDPS Act is sustainable when the mandatory requirements of Section 50 regarding search were allegedly not complied with, and whether the quantity of brown sugar recovered falls within commercial quantity attracting enhanced punishment.
Final Decision
The High Court dismissed the appeal and upheld the conviction and sentence of 10 years R.I. imposed by the Trial Court.
Law Points
- Section 50 of NDPS Act
- 1985 requires that accused be informed of right to be searched before Gazetted Officer or Magistrate
- but if accused refuses such offer
- search is valid
- Compliance with Section 50 is not mandatory when contraband is recovered from bag or container not on the person
- Small quantity of 7 gms and 1.4 gms brown sugar is commercial quantity under NDPS Act
