Case Note & Summary
The appellants, Sardar S/o Hatiram Jadhav, Gyaneshwar S/o Baburao, Devidas S/o Balaji Chavan, and Vijaykumar S/o Bapurao Chavan, were convicted by the Special Judge, Bidar, in Special Case (NDPS) No.17/2012 for offences punishable under Section 20(B)(ii)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Section 34 of the Indian Penal Code. They were sentenced to rigorous imprisonment for 10 years each and a fine of Rs.1,00,000/- each. The conviction and sentence were passed on 18.4.2015 and 22.4.2015 respectively. The appellants, who were in judicial custody, appealed against this judgment under Section 374(2) of the Code of Criminal Procedure, 1973. The primary ground of appeal was that the mandatory provisions of Section 50 of the NDPS Act were not complied with, as the accused were not informed of their right to be searched before a Gazetted Officer or Magistrate. The High Court of Karnataka, Kalaburagi Bench, heard the appeal. The court noted that the prosecution had not produced any evidence to show that the accused were informed of their right under Section 50. The court emphasized that Section 50 imposes a mandatory duty on the searching officer to inform the accused of such right, and failure to do so renders the search and seizure illegal. The court held that the conviction was unsustainable and set aside the same, acquitting the appellants of all charges. The court directed that the appellants be set at liberty forthwith if not required in any other case.
Headnote
A) Criminal Procedure - Appeal against Conviction - Section 374(2) Cr.P.C. - Appellants convicted under NDPS Act challenged conviction on ground of non-compliance with Section 50 - Court examined whether mandatory procedure was followed - Held that failure to inform accused of right to be searched before Gazetted Officer or Magistrate vitiates the trial (Paras 1-10). B) Narcotic Drugs - Search and Seizure - Section 50 NDPS Act, 1985 - Mandatory Requirement - The prosecution must prove that the accused was informed of their right to be searched before a Gazetted Officer or Magistrate - In absence of such evidence, the search and seizure become illegal - Conviction set aside (Paras 5-10). C) Evidence - Burden of Proof - Section 50 NDPS Act, 1985 - The burden is on the prosecution to show compliance with Section 50 - Mere recovery of contraband is not sufficient if procedural safeguards are not followed - Accused entitled to benefit of doubt (Paras 8-10).
Issue of Consideration
Whether the conviction of the appellants under Section 20(B)(ii)(b) of the NDPS Act, 1985 read with Section 34 IPC is sustainable when the mandatory provisions of Section 50 of the NDPS Act regarding informing the accused of their right to be searched before a Gazetted Officer or Magistrate were not complied with.
Final Decision
Appeal allowed. Conviction and sentence set aside. Appellants acquitted of all charges. They shall be set at liberty forthwith if not required in any other case.
Law Points
- Non-compliance with Section 50 of NDPS Act
- 1985
- mandatory requirement to inform accused of right to be searched before Gazetted Officer or Magistrate
- conviction unsustainable if search conducted without such information
- burden on prosecution to prove compliance
- strict interpretation of procedural safeguards in NDPS Act
