1. Conviction and sentencing under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985. (Para 1 )
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1999 Supreme(SC) 837
SUPREME COURT OF INDIA
G.T.Nanavati : S.S.M.Quadri
C.Ali
Versus
State Of Kerala
Case No. : 606 of 1997
Date of Decision : 8/11/99
Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, requiring that a person be informed of their right to be searched before a Magistrate or gazetted officer, is mandatory; failure to prove such compliance invalidates the conviction.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Mandatory requirement of informing the person to be searched about their right to be searched in the presence of a Magistrate or a gazetted officer - Non-compliance with this requirement is fatal to the prosecution - No presumption can be raised regarding the fulfillment of this requirement. (Para 2)
Facts of the case:
The appellant was convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced to ten years of rigorous imprisonment and a fine. The appellant challenged the conviction on the grounds that the mandatory requirements of Section 50 of the Act were not complied with during the search.
Findings of Court:
The court found that the evidence of the prosecution witness was silent on whether the appellant had been informed of his right to be searched in the presence of a Magistrate or a gazetted officer. There was no evidence on record to prove that the mandatory requirement of Section 50 was fulfilled.
Issues: Whether the mandatory requirement of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, regarding the right to be searched in the presence of a Magistrate or a gazetted officer, was complied with.
Ratio Decidendi: The court held that informing the person to be searched about their right under Section 50 is a mandatory requirement under the Narcotic Drugs and Psychotropic Substances Act, 1985, and no presumption can be raised to the effect that such information was provided. Failure to comply with this mandatory provision warrants the setting aside of the conviction.
Result: Appeal allowed, conviction set aside and order of sentence quashed.
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Table of Contents
2. Non-compliance with the mandatory requirement of informing the accused of their right to be searched under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. (Para 2 )
3. Evidence was silent on whether the appellant was informed of the right to be searched before a Magistrate or gazetted officer. (Para 2 )
4. Informing a person of their right to be searched under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is a mandatory requirement. (Para 2 )
5. Appeal allowed — conviction set aside and sentence quashed. (Para 2 )
6. Is the requirement to inform a person of their right to be searched under Section 50 of the NDPS Act mandatory?
Yes, the requirement to inform the person to be searched of their right under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is mandatory, and no presumption to that effect can be raised. (Para 2 )
7. What is the legal consequence of failing to comply with the mandatory search requirements under Section 50 of the NDPS Act?
Failure to comply with the mandatory requirement of informing the accused of their right to be searched under Section 50 can result in the conviction being set aside. (Para 2 )
(1) THE appellant has been convicted for the offence punishable under Section 21 of the Narcotic Drugs and Pshycotropic Substances Act, 1985 and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs 1 lakh.
(2) THE appellant had contended a point before the High court that the mandatory requirement of Section 50 of the Act was not complied with in this case. We do not find any clear finding recorded by the High court on this point. As the deposition of the Circle Police Inspector (Public witness 5 was recorded in Malayalam language, we told learned counsel for both the parties to verify and tell us whether he had stated in his evidence that the appellant was informed about his right to be searched in the presence of a Magistrate or a gazetted officer. After going through his evidence, both the learned counsel stated that the evidence of the witness is silent on this point. The settled position of law is that the person to be searched under the Narcotic Drugs and Pshycotropic Substances Act, 1985 is required to be told about his right under Section 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised. As there is no evidence on record to show that the appellant was informed about his said right, it has to be held that the said mandatory requirement of Section 50 was not complied with in this case. On this short point, this appeal deserves to be allowed. Accordingly, we allow this appeal, set aside the conviction of the appellant and also quash the order of sentence passed against him.
