1. Conviction under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985, following a search and seizure of brown sugar. (Para 2 , 3 )
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1999 Supreme(SC) 821
SUPREME COURT OF INDIA
D.P.Mohapatra : K.T.Thomas
Kalayath Nassar
Versus
State Of Kerala
Case No. : 2044 of 1996
Date of Decision : 8/10/99
Compliance with Section 50 of the NDPS Act is mandatory; failure by the searching officer to inform the accused of their right to be searched in the presence of a gazetted officer or Magistrate vitiates the search and renders the evidence unacceptable.
Headnote:(A) Narcotic Drugs & Psychotropic Substances Act, 1985 - Section 50 - Search and seizure - Right of the accused to be searched in the presence of a gazetted officer or a Magistrate - Failure of the searching officer to communicate this right to the accused - Non-compliance with the requirements of Section 50 vitiates the search and causes prejudice to the accused - It is not sufficient that the accused did not make a request for such a search; the officer is duty-bound to inform the accused of the right. (Paras 5, 6)
Facts of the case:
The appellant was stopped in a vehicle and searched, resulting in the recovery of brown sugar. It was admitted by the searching officer that the appellant was not informed of the right to be searched in the presence of a gazetted officer or a Magistrate. The trial court convicted the appellant, and the High Court confirmed the conviction, holding that the requirements of Section 50 were not mandatory if the accused did not make a request.
Findings of Court:
The search conducted in violation of Section 50 is vitiated. Consequently, the evidence concerning the search is unacceptable. In the absence of other evidence to prove possession of the forbidden article, the conviction and sentence cannot be sustained.
Issues: Whether the failure of the searching officer to inform the accused of their right to be searched in the presence of a gazetted officer or a Magistrate under Section 50 of the Act vitiates the search and the subsequent conviction.
Ratio Decidendi: The court held that the requirements of Section 50 are mandatory. A search conducted without informing the accused of their right to be searched before a gazetted officer or Magistrate is vitiated, regardless of whether the accused specifically requested such an arrangement.
Result: Appeal allowed; conviction and sentence set aside; appellant acquitted.
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Table of Contents
2. Whether non-compliance with the requirement to inform the accused of their right to be searched before a Gazetted Officer or Magistrate under Section 50, NDPS Act, vitiates the search. (Para 4 )
3. Failure to communicate the right to be searched before a Gazetted Officer or Magistrate constitutes non-compliance with Section 50, regardless of whether the accused requested it. (Para 5 , 6 )
4. A search conducted in violation of Section 50 of the NDPS Act vitiates the search and prejudices the accused, rendering the search evidence unacceptable. (Para 5 , 6 , 7 )
5. Appeal allowed; conviction and sentence set aside; appellant acquitted. (Para 8 )
6. Does the failure to inform an accused of their right to be searched before a Gazetted Officer or Magistrate under Section 50 of the NDPS Act vitiate the search?
Yes. A search conducted in violation of Section 50 of the Act vitiates the search and causes prejudice to the accused, making the evidence concerning the search unacceptable. (Para 5 , 7 )
7. Is the requirement to inform the accused of their right under Section 50 of the NDPS Act dependent on the accused making a request?
No. The searching officer must communicate the right to the accused. Non-compliance occurs if the officer fails to do so, regardless of whether the accused made a request for such a search. (Para 6 )
(1) UNFORTUNATELY we had to proceed with this appeal without the help of arguments of the learned counsel for the appellant as he has not turned up and there is nobody to represent him. But we found that the appellant is languishing in jail and he has already covered a substantial portion of the sentence of imprisonment imposed on him. If we adjourn this case further to another date it would be only to the detriment of the interest of the appellant. So, we heard learned counsel for the respondent State of Kerala who assisted us with the facts of this case also. We went through the various aspects concerning this case.
(2) BEFORE the trial court there were 3 accused including the present appellant. All the 3 were indicted for an offence under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). The trial court acquitted the 3rd accused and convicted the other two of the said offence and sentenced both of them to undergo imprisonment for 10 years and to pay a fine of Rs 1,00,000.00 each. Those convicted persons preferred an appeal before the High court. A Single Judge of the High court allowed the appeal filed by the 2nd accused and acquitted him but confirmed the conviction and sentence of the appellant. Hence this appeal by special leave.
(3) THE facts lie in a narrow compass. Public Witness 1 Circle Inspector Police received information that certain persons were on the move in an autorickshaw carrying brown sugar. He, therefore, went in search of the autorickshaw and came across the same. He stopped the vehicle and found the appellant and two other persons sitting on the seat. When the appellant was searched he was found carrying a bag in which 300 grams of brown sugar had been detected. Two other bags kept close to him were also seized and those bags also contained brown sugar. Further facts of the case are not necessary for disposal of this appeal.
(4) IT is admitted by Public Witness 1 that the appellant was not informed that he has a right of being searched in the presence of a gazetted officer or a Magistrate. When Public Witness 1 was confronted with this aspect he said that the appellant did not make a demand that search should be conducted in the presence of a gazetted officer or a Magistrate. Learned Single Judge of the High court relied on the decision of this court in State of Punjab v. Balbir Singh for holding that the requirements of Section 50 of the Act are not mandatory and non-compliance therewith would not vitiate the search. Learned Judge further held that there was no question of non-compliance with Section 50 of the Act in this case inasmuch as the appellant did not make a request on his own that the search should be conducted in the presence of a gazetted officer or a Magistrate.
(5) THE legal position has since been changed with the pronouncement of the decision of the Coustitution bench of this court in State of Punjab v. Baldev Singh. It has been held that a search conducted in violation of Section 50 of the Act would vitiate the search and prejudice would be caused to the accused if the requirements are not complied with.
(6) THE dictum in Balbir Singh has been explained away by the Constitution bench. In a case where the searching officer failed to communicate to the accused, who was subjected to search, that he has a right to be searched in the presence of a gazetted officer or a Magistrate there would be non-compliance with the requirement of Section 50. Merely for the reason that the accused did not make a request to the searching officer on his own that the search should be conducted in the presence of such officer it cannot be held that there was no need to inform him of that right.
(7) IN view of the change in the legal position with the pronouncement of the Constitution bench decision in the aforesaid case the search conducted in this case must be held to have been vitiated. Consequently, it must be inferred
