Case Note & Summary
The appellant, Bocoum Ibrahim Malienne, a Nigerian national, was convicted by the Special Judge, NDPS Court, Greater Mumbai in NDPS Special Case No. 256 of 1998 for offences punishable under Section 29 read with Section 8(c) and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). He was sentenced to rigorous imprisonment for 10 years and a fine of Rs. 1 lakh, with default sentence of three months. The co-accused, Mohammed Farooq Qureshi, was also convicted and sentenced similarly but was acquitted by the Bombay High Court in a separate appeal. The appellant challenged his conviction on the ground that the mandatory provisions of Section 50 of the NDPS Act were not complied with. The prosecution case was that on 10th September 1998, officers of the Narcotics Cell, Customs Preventive Commissionerate, Mumbai, intercepted the appellant and co-accused at a hotel and recovered 1 kg of heroin from a bag in their possession. The trial court convicted both accused. In appeal, the High Court noted that the co-accused had already been acquitted by the same court on the same evidence. The court examined the evidence and found that the prosecution had failed to prove that the appellant was informed of his right to be searched before a Gazetted Officer or Magistrate as required under Section 50 of the NDPS Act. The court held that non-compliance with Section 50 vitiates the search and seizure, and consequently the conviction cannot be sustained. The court also noted that the case of the appellant was identical to that of the co-accused who had been acquitted, and therefore the appellant was entitled to the same benefit. The appeal was allowed, the conviction and sentence were set aside, and the appellant was ordered to be released forthwith unless required in any other case.
Headnote
A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Right to be searched before Gazetted Officer or Magistrate - Mandatory compliance - The prosecution must prove that the accused was informed of his right to be searched before a Gazetted Officer or Magistrate. Failure to do so vitiates the search and seizure and the consequent conviction. (Paras 4-6) B) Criminal Appeal - Acquittal of co-accused on same evidence - Parity - Where the co-accused has been acquitted by the same court on the same evidence and the case of the appellant is identical, the appellant is entitled to the same benefit of acquittal. (Para 7)
Issue of Consideration
Whether the conviction of the appellant under Section 29 read with Section 8(c) and 21 of the NDPS Act, 1985 is sustainable when the mandatory provisions of Section 50 of the Act were not complied with, and whether the appellant is entitled to acquittal on the basis of the same evidence that led to the acquittal of co-accused.
Final Decision
The appeal is allowed. The judgment and order of conviction and sentence passed by the Special Judge, NDPS Court, Greater Mumbai in NDPS Special Case No. 256 of 1998 is set aside. The appellant is acquitted of all charges. He shall be released forthwith unless required in any other case.
Law Points
- Section 50 of NDPS Act requires that accused be informed of right to be searched before a Gazetted Officer or Magistrate
- Non-compliance renders search illegal and conviction unsustainable
- Burden of proof of compliance on prosecution
- Acquittal of co-accused on same evidence strengthens case for appellant
