NDPS - Non-compliance with Sec 50 of NDPS Act, 1985 - High Court sets aside conviction by trial court
By TIOL News Service
CHANDIGARH, AUG 25, 2015: THE appellant was convicted for the offence punishable under Section 20(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 40,000, in default thereof, to undergo further imprisonment for a period of two years. The order of Trial court is under challenge before the High court on valorous grounds.
Though the High Court rejected the contentions of the appellant on various issues (Contradictions in the statements of prosecution witnesses, Sub-Inspectorbeing complainant was not entitled to investigate the case, Non-joining of independent witness in investigation, Delay in sending the samples to Forensic Science Laboratory and Non-compliance of Section 42 NDPS Act), on the issue of non-compliance with Section 50 of the NDPS Act, the High Court ruled in favour of the appellant by holding that:
The prosecution has failed to meet with the mandatory requirements of Section 50 NDPS Act, which lays down the manner in which search of the person of accused suspected of carrying some contraband is to be effected. Perusal of the notice served upon the appellant under Section 50 NDPS Act shows that he was apprised that he can opt for his search to be conducted by the Investigating Officer SI Ram Chander, some gazetted police officer or some other gazetted officer.
A question which arises for consideration is as to whether the above option is sufficient compliance of provisions of Section 50 NDPS Act. A Constitution Bench of Hon'ble Supreme Court in case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, - 2011-TIOL-51-SC-NDPS-CB examined the scope and width of the provisions of Section 50 NDPS Act and observed that 'we have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.'
Perusal of the notice given under Section 50 NDPS Act as reproduced in para 2 reveals that this notice is short of compliance of the provisions of Section 50 NDPS Act which require to apprise the suspect of his right to get his search conducted before a gazetted officer of any of the department mentioned in Section 42 or nearest Magistrate. The mere fact that the gazetted officer i.e. Tehsildar, who was called at the spot to conduct the search also happened to be an Executive Magistrate, in no manner, fulfill the lacuna left by the Investigating Officer.
As per observations of Hon'ble Supreme Court in case of Vijaysinh Chandubha Jadeja Vs. State of Guajarat, the appellant was not informed about the existence of his right to get him searched before a Gazetted Officer or a Magistrate and this has caused prejudice to him, thereby rendering the recovery of narcotic from the possession of appellant as illicit.
Having failed to comply with provisions of Section 50 NDPS Act, in its true spirit, as discussed above, the recovery made from the person of appellant in this case was illicit and vitiate his conviction. This appeal has merits and the same is accepted. Judgment of conviction and order of sentence recorded by the trial Court is set aside. The appellant is acquitted of the charge framed against him.
(See 2015-TIOL-1936-HC-P&H-NDPS)
