IMPORTANT POINT
When the officer concerned has not deposed that he had followed the procedure mandated by Section 50 of NDPS Act. Court is duty bound to conclude that accused had not had the benefit of protection that section 50 affords and possession of illicit articles not established.

JUDGMENT

Bharucha, J. - Special leave granted. The appeal is directed against the judgment and order of a Division Bench of the High Court of Gujarat. The High Court upheld the conviction of the appellants for offences punishable under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and the punishment imposed on each of them therefor, namely, rigorous imprisonment for a term of ten years and fine of Rupees one lakh; in default of payment of the fine, rigorous imprisonment for a further term of two years. It upheld also the conviction of the appellants under the provisions of Sections 65 and 66 of the Bombay Prohibition Act, 1949, in respect whereof no separate punishment had been imposed.

2. It was the case of the prosecution that on 18th October, 1986, Police Sub-Inspector Rathod and Rana received information that the first appellant was doing the business of selling charas in Vaynariyad, opposite Renbasera, Ahmedabad. Along with other police personnel, PSIs Rathod and Rana raided the area. Upon search 55 grams of charas was found from the first appellant and 10 grams from the second and third appellants. The appellants were charge-sheeted, tried by the Additional City Sessions Judge, Ahmedabad, and convicted and sentenced as aforesaid.

3. It was contended by learned counsel appearing for the appellants before the High Court that, under the provisions of Section 50 of the NDPS Act, the appellants were required to be informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate and there was no evidence to show that PSI Rathod or PSI Rana had informed the appellants accordingly; there being a breach of the provisions of Section 50, the appellants were entitled to an acquittal. The learned Additional Public Prosecutor pointed out to the High Court that this argument had not been made before the trial court and he submitted that it question of fact could not be permitted to be raised for the first time in appeal. He also submitted that, by reason of Section 54 of the NDPS Act the burden was on the appellants to prove that they had not committed offences under the NDPS Act and this they had failed to do. In the alternative, he submitted that the act of informing the accused of their right to be searched in the presence of Gazetted Officer or a Magistrate under Section 50 of the NDPS Act was an official act to be performed by a police officer and the High Court should raise a presumption under the provisions of Section 114, illustration (e) of the Indian Evidence Act, 1872, to that effect. The High Court noted the judgment of this court in the case of State of Punjab v. Balbir Singh1, and observed that it was an imperative requirement that a police officer intending to search a person for the possession of articles covered by the NDPS Act should inform him that he had a right to be searched, if he so chose, in the presence of a Gazetted Officer or a Magistrate. The High Court then stated:

"In nutshell we may say that both PSI Rathod and PSI Rana have stated almost each and everything in their evidence regarding the information received by them, calling for the Panchas, going to the place of offence, searching the accused and on search finding of muddamal Charas of 55 grams from accused No.1 and 10 grams each from accused Nos. 2 and 3. What is not stated by them before the Court is that they had informed the accused about their right under section 50 of the NDPS Act to be searched in presence of a gazetted officer or a magistrate. In our opinion, Mr. Shelat, learned Addl. P.P. was right in submitting that the Court has to raise presumption that PSI Rathod and PSI Rana must have informed the accused about their such a right to be searched in presence of a gazetted officer or a magistrate before the search as it was an official act "

The High Court went on to state:

"To inform the accused about his right to be searched in presence of a gazetted of