Case Note & Summary
The appellant, Rama Nagorao Bhagat, was convicted by the Additional Sessions Judge, Wardha, in Special Case No. 5/2004 for an offence under Section 20(c) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to 10 years rigorous imprisonment and a fine of Rs. 1 lakh. The prosecution case was that on 15 July 2004, Police Sub Inspector Deepak Khobragade received secret information that two persons were in possession of ganja near Pulgaon Cotton Mill. After recording the information and obtaining permission, a raiding party including a gazetted officer (Police Inspector Taiwade) and panch witnesses proceeded to the spot. They found four gunny bags and two persons, one of whom was the appellant. Upon interrogation, the appellant allegedly stated the bags contained chillies, but upon opening, ganja was found mixed with chillies. A total of 142 kg of wet ganja was seized from four gunny bags. The appellant was arrested and charged. The trial court convicted him. In appeal, the appellant challenged the conviction primarily on the ground of non-compliance with Section 50 of the NDPS Act, arguing that he was not informed of his right to be searched before a Gazetted Officer or Magistrate. The High Court examined the evidence of the panch witnesses and the investigating officer. It found contradictions: the panch witnesses stated that the appellant was not given any option, while the investigating officer claimed he was. The court held that the prosecution failed to prove compliance with Section 50, which is mandatory. The court also noted that the presence of a Gazetted Officer at the spot did not obviate the need to inform the accused of his right. Consequently, the conviction was set aside and the appellant was acquitted. The court directed that the appellant be set at liberty forthwith unless required in any other case.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances - Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Right of Accused to be Searched Before Gazetted Officer or Magistrate - The prosecution failed to prove that the accused was informed of his right to be searched in the presence of a Gazetted Officer or Magistrate before the search was conducted. The evidence of the panch witnesses and the investigating officer was contradictory and unreliable. Held that non-compliance with Section 50 vitiates the conviction (Paras 7-12).
Issue of Consideration
Whether the conviction under Section 20(c) read with Section 8 of the NDPS Act is sustainable when the mandatory provisions of Section 50 of the Act were not complied with, specifically the failure to inform the accused of his right to be searched in the presence of a Gazetted Officer or Magistrate.
Final Decision
The appeal is allowed. The judgment and order of conviction passed by the Additional Sessions Judge, Wardha, in Special Case No. 5/2004 dated 16/9/2005 is set aside. The appellant is acquitted of the offence under Section 20(c) read with Section 8 of the NDPS Act. The appellant be set at liberty forthwith unless required in any other case.
Law Points
- Mandatory compliance of Section 50 of NDPS Act
- Right to be searched before Gazetted Officer or Magistrate
- Failure to inform accused of right vitiates conviction
