Case Note & Summary
The appellant, Sheikh Mehboob Sheikh Hussain, was convicted by the learned Special Judge (NDPS Court), Nagpur, in Special Criminal Case No.47/2001 under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to rigorous imprisonment for three years and a fine of Rs.10,000/-. The prosecution case was that on 6.8.2001, Head Constable Deorao Thorat (PW6) received secret information that the appellant would be carrying ganja near Ring Road Square. After reducing the information to writing and sending a report under Section 42(1) and (2) of the NDPS Act, a trap was laid and the appellant was apprehended. The appellant was allegedly found in possession of 5 kgs of ganja. The trial court convicted the appellant. In appeal, the appellant challenged the conviction primarily on the ground of non-compliance with Section 50 of the NDPS Act, which mandates that the accused be informed of his right to be searched in the presence of a Gazetted Officer or Magistrate. The High Court heard the appeal and examined the evidence. The court noted that the panch witnesses had turned hostile and did not support the prosecution case. The investigating officer's testimony regarding compliance with Section 50 was not corroborated. The court held that the prosecution failed to prove that the appellant was informed of his right under Section 50 before the search. The court emphasized that compliance with Section 50 is mandatory and non-compliance vitiates the trial. Consequently, the court allowed the appeal, set aside the conviction and sentence, and acquitted the appellant.
Headnote
A) Criminal Law - Narcotic Drugs and Psychotropic Substances - Section 50 of NDPS Act, 1985 - Right 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 panch witnesses turned hostile and the evidence of the investigating officer was not corroborated. Held that non-compliance with Section 50 is fatal to the prosecution case and the conviction cannot be sustained (Paras 4-6).
Issue of Consideration
Whether the conviction under Section 20(b)(i) of the NDPS Act, 1985 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
Appeal allowed. Conviction and sentence set aside. Appellant acquitted. Fine, if paid, to be refunded.
Law Points
- Section 50 of NDPS Act
- 1985
- mandatory compliance
- right to be searched before Gazetted Officer or Magistrate
- failure to inform vitiates trial
- burden of proof on prosecution
- strict compliance required
