Case Note & Summary
The appellant, Manoj @ Lakhan Laxman Gavai, was convicted under Section 20(b)(ii) B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) for possession of 4 kg 100 grams of Ganja and sentenced to five years rigorous imprisonment and a fine of Rs. 25,000 by the 5th Ad-hoc Assistant Sessions Judge, Akola in Special Criminal Case No.13 of 2004. He appealed to the Bombay High Court. The facts leading to his prosecution were that on 26.08.2004, PSI Pundkar of Crime Branch, Akola, while on patrolling duty, received information about a person bringing Ganja. He recorded the information, informed the Sub Divisional Police Officer, Murtizapur, and proceeded to conduct a raid at Mahan Bus-stand. The accused alighted from a taxi jeep, and PSI Pundkar stopped him, identified himself, informed the accused of his right to be searched by a Magistrate or Gazetted officer, and after the accused agreed to be searched by police, searched him in the presence of panchas. A bag containing 4 kg 100 grams of Ganja was found. A sample of 100 grams was taken and sealed, and the rest was also sealed. The occurrence report was lodged, and the sample was sent to the Forensic Science Laboratory, which confirmed it as Ganja. The accused was chargesheeted. The trial court convicted him. In appeal, the appellant argued that the mandatory provisions of Section 50 of the NDPS Act were not complied with, as the prosecution failed to prove that the accused was informed of his right to be searched before a Gazetted Officer or Magistrate. The High Court examined the evidence and found that the panch witnesses turned hostile and did not support the prosecution case. The investigating officer's testimony was not corroborated. The court held that the burden of proving compliance with Section 50 is on the prosecution, and in this case, the prosecution failed to discharge that burden. Therefore, the conviction was set aside, and the appellant was acquitted. The court allowed the appeal and directed that the appellant be set at liberty forthwith if not required in any other case.
Headnote
A) Narcotic Drugs - Search and Seizure - Section 50 NDPS Act - Right to be Informed - The court considered whether the accused was informed of his right to be searched before a Gazetted Officer or Magistrate as required under Section 50 of the NDPS Act. The prosecution failed to prove that the accused was so informed, as the panch witnesses turned hostile and the investigating officer's testimony was not corroborated. Held that non-compliance with Section 50 vitiates the trial and the conviction cannot be sustained (Paras 4-6).
Issue of Consideration
Whether the conviction under Section 20(b)(ii) B of the NDPS Act is sustainable when the mandatory requirements of Section 50 of the NDPS Act regarding informing the accused of his right to be searched before a Gazetted Officer or Magistrate were not complied with
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellant acquitted. Bail bonds cancelled. Appellant to be set at liberty forthwith if not 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 vitiates trial
- burden of proof on prosecution to show compliance
- conviction cannot be sustained if mandatory procedure not followed
