IMPORTANT POINT
In this case violation of mandatory provisions of Section 42(2) and 50 of NDPS Act is writ large hence the case of possessing 11 gms. of opium without licence against appellant cannot be said to have been established and he is entitled to acquittal.

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 8(c) read with 18-Offence of possessing 11 gms. of opium without licence-Non-compliance of Sections 42 and 50-Effect-Would render the investigation illegal-Result-Appeal allowed-Appellant is entitled to acquittal-Case law discussed.
       Held [In 1999(6) SCC 172] : After referring to host of judgments, the Constitution Bench of the Court held that the provisions of Sections 42 and 50 are mandatory and their non compliance would render the investigation illegal. (Para 5)
       In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (PW1). After recording the information, the witnesses is not shown to have complied with the mandate of sub-section (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The compliance of Section 50 is held to have been fulfilled on his (PW1) asking the accused "whether I should search him in the presence of senior officers or Gazetted Officer". The accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in presence of gazetted officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act, the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment. Under the circumstances the appeal is allowed by setting aside the impugned judgment. The appellant is directed to set at liberty forthwith unless required in any other case. (Paras 7, 8 & 9)

JUDGMENT

Sethi, J.-For allegedly possessing 11 gms. of opium without licence, the appellant has been convicted under Section 9(c) read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). He has been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and in default of payment of fine to suffer further rigorous imprisonment for six months. It is stated at the Bar that the appellant has already undergone sentence of about 8 years.

2. No-one has appeared for the appellant. From the memo of the appeal it is found that the conviction and sentence awarded to the appellant has been assailed mainly on the ground of violation of the provisions of Sections 42 and 50 of the Act. The learned counsel, appearing for the respondent-State has, however, contended that as there was substantive compliance of the provisions of the Act, no interference is called for.

3. According to the prosecution, the Sub Inspector of Police received a telephonic message on 6.10.1990 at about 8.30 a.m. that narcotic drugs were being sold at T.C. Junction. He recorded the information in the general diary and proceeded to the scene of occurrence in a jeep. On reaching T.C. Junction at about 8.45 a.m. he saw the accused carelessly walking from the bus shelter towards Kathu Parambu side. Allegedly seeing him in suspicious condition, the Sub Inspector along with his party approached him and after disclosing his identity searched the person of the accused in presence of witnesses. It was found that inside the fold of Dhoti, which the appellant was wearing, opium had been concealed in a polythene bag. As he was found unauthorisedly possessing the opium, he was arrested and the opium seized was weighed to be 11 gms. Out of that 2 gms. each were separated and two samples were roped in plastic paper. On enquiry from the accused whether he would like to meet any higher official or Gazetted Officer, he allegedly replied in negative. Section 42 of the Act provides:

"42. Power of entry, search, seizure and arrest without warrant or authorisation.-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drug control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug, or substance:

Provided that if such officer

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2002 Supreme(SC) 489

IMPORTANT POINTIn this case violation of mandatory provisions of Section 42(2) and 50 of NDPS Act is writ large hence the case of possessing 11 gms. of opium without licence against appellant cannot be said to have been established and he is entitled to acquittal.

Cases Referred (3)

IMPORTANT POINT
In this case violation of mandatory provisions of Section 42(2) and 50 of NDPS Act is writ large hence the case of possessing 11 gms. of opium without licence against appellant cannot be said to have been established and he is entitled to acquittal.