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1997 Supreme(SC) 618
SUPREME COURT OF INDIA
G B Pattanaik, G N Ray
ABDUL RAHMAN, APPELLANT
VERSUS
STATE OF KERALA, RESPONDENT.
Criminal Appeal No. 725 of 1995, decided on April 3, 1997.
Non-compliance with the mandatory provisions of Section 50 of the NDPS Act, specifically the failure to inform the accused of their right to be searched before a Gazetted Officer or Magistrate, renders the search and seizure illegal and entitles the accused to acquittal.
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 20(b)(i) and Section 50 - Possession of contraband ganja - Recovery of small packets from the person of the accused - Mandatory provision of Section 50 not complied with - Accused not informed of the right to be searched in the presence of a Gazetted Officer or before a Magistrate - Search and seizure conducted straightway by police officer - Such illegality renders the search and seizure void, entitling the accused to acquittal.
Facts of the case:
The appellant was convicted for possessing contraband ganja recovered from his person and premises. While the High Court rejected the recovery from the premises, it upheld the conviction based on the recovery of 56 small packets from the pockets of the appellant's underwear. However, the seizure was not supported by the seizure witnesses, and there was no mention of the underwear or the specific quantity of packets in the personal search register or the general diary.
Findings of Court:
The court found that the mandatory requirements of Section 50 of the NDPS Act were not met as the accused was not informed of his legal right to be searched before a Gazetted Officer or a Magistrate.
Issues: Whether the failure to comply with the mandatory provisions of Section 50 of the NDPS Act regarding the search of a person vitiates the recovery and justifies acquittal.
Ratio Decidendi: The mandatory provision of Section 50 of the NDPS Act must be strictly followed; failure to inform the accused of their right to be searched by a Gazetted Officer or Magistrate renders the search and seizure illegal, and this illegality operates to entitle the accused to an order of acquittal.
Result: Appeal allowed and conviction and sentence set aside.
Legal Category Hierarchy
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crime and sentencing
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narcotic drugs and psychotropic substances
- possession of contraband
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narcotic drugs and psychotropic substances
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practice and procedure
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criminal procedure
- search and seizure
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criminal procedure
ORDER
The appellant in this case was convicted under Section 20(b) (i) of the NDPS Act for possessing contraband ganja. According to the prosecution case, some quantity of ganja was recovered when the person of the accused was searched and the remaining quantity of ganja was recovered from the premises of the accused. Accepting the prosecution case, the trial court convicted the accused and the High Court has upheld the conviction. The High Court has not however accepted the alleged recovery of ganja from the premises of the accused but the case of recovery of 56 small packets of ganja from the pockets of the underwear of the accused has been accepted by the High Court. It, however, appears that such recovery has not been supported by PWs 3 and 4 who are the witnesses to such seizure. Moreover, on the personal search register, it was not stated that the accused was weanng underwear from the pockets of which the said small packets of ganja had been recovered. In the general diary there is no mention of the seizure of 56 packets of ganja. The trial court has brushed aside such facts by indicating that such lapses did not affect the prosecution case in view of the other evidences. It however appears to us that apart from such infirmity, the mandatory provision of Section 50 of the NDPS Act has not been complied with in this case. The accused was not told that he could get himself searched in the presence of a Gazetted Officer or before a Magistrate under the NDPS Act. The alleged seizure was made by searching the person of the accused straightway by the police officer. Even though such search and seizure had been made prior to the decision of the Court in Balbir Singh case [State ofPunjab v. Balbir Singh, (1994) 3 SCC 299] the illegality of such search and seizure as indicated by this Court operates. Accordingly even on the score of illegality in search and seizure a the accused appellant is entitled to get an order of acquittal. We, therefore, allow this appeal and set aside the conviction and sentence. The appellant is directed to be released forthwith if he is not wanted in connection with any other criminal case.
