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SUPREME COURT OF INDIA
S.N. Variava, Brijesh Kumar, JJ.
Tommy Thomas - Appellant
Versus
State of Goa - Respondent
Criminal Appeal No. 422 of 2002
Decided On : 04-09-2002
Narcotic Drugs and Psychotropic Substances Act - Conviction under Section 20(b)(ii) - Section 50 - [57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.]
Fact of the Case:
The appellant was convicted under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act. The prosecution's evidence included the recovery of illicit substances from the appellant's person and the surrounding area. The appellant challenged the compliance with the mandatory provisions of Section 50 of the Act.
Finding of the Court:
The court found that the evidence of the empowered officer, PW 4, regarding informing the appellant of his rights under Section 50 was credible and upheld the conviction. The court also held that the recovery of illicit substances from the appellant's person was sufficient for conviction.
Issues: The issues revolved around the compliance with the mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act and the sufficiency of evidence connecting the recovery to the accused.
Ratio Decidendi: The court emphasized the importance of informing the person of their right to be searched before a gazetted officer or a Magistrate under Section 50. It held that failure to comply with this provision may render the recovery of illicit substances suspect and vitiate the conviction and sentence of an accused. The court also clarified that the recovery of illicit substances from the person of the accused, even if not from a private place, could be sufficient for conviction.
Final Decision: The appeal was dismissed, upholding the conviction under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act.
ORDER :
S.N. Variava, J.
This appeal is against the judgment dated 5-9-2001 by which the High Court has confirmed the conviction and sentence passed by the Special Court, under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called "the Narcotic Drugs And Psychotropic Substances Act").
2. Briefly stated, the facts are as follows: on 24-10-1999 PW 4, Uday Naik, who was attached to the Anti-Narcotic Cell, Panaji, received a specific and reliable information that one person named Tommy Thomas was selling charas at Tiwaivaddo, Calangute, near the house of one Silveira. PW 4 reduced the said information to writing and the same was delivered to the Deputy Superintendent of Police, PW 6, Apa Kashiram Teli. PW 4 then secured the presence of two panchas i.e. PW 3, Nitin Prabhakar Dhond and another panch, and apprised them about the information received. The panchas were then introduced to the other members of the raiding party which consisted of PW 6, PW 5, PI Lavhu Mamledar, Head Constable Sheikh Sallia, T.T. Naik and Police Constables Harinam Naik, Sadashiv Shetye and Sandeep Shirvaikar. The raiding party then proceeded in a police jeep and on a private motorcycle to Tiwaivaddo. The raiding party on reaching Tiwaivaddo made enquiries about the house of Silveira. They then went on foot towards the house. On reaching there, they saw one person searching something in the bushes. As his description matched the description which had been received, the raiding party then surrounded that person i.e. the appellant. After surrounding him, PW 4 identified himself and told the appellant that they had received specific and reliable information that he is selling charas. PW 4 apprised the appellant regarding his right to get himself searched in the presence of either a gazetted officer or a Magistrate and also that he had a right to get the members of the raiding party searched. The appellant declined to exercise his right and, therefore, personal search of the appellant was taken. From the right-hand-side pocket of the pants he was wearing, one polythene bag containing some blackish-coloured substance was found. This was suspected to be charas. It was weighed and it came to 220 gm. The said substance was then sealed in an envelope with the seal of the Anti-Narcotic Cell, Panaji, Goa. The envelope was also signed by PW 4, PW 3 (the panch witness) as well as the appellant. Search was also taken of the bushes. In the bushes a polythene bag containing blackish-coloured substance, which was suspected to be charas, was found. It was weighed and the weight was confirmed at 850 gm. This bag was also sealed and the same procedure was followed.
3. At the trial, the accused pleaded not guilty. The prosecution led evidence of six witnesses, including the evidence of the Junior Scientific Officer, PW 1 and Scientific Assistant, PW 2. They also led the evidence of panch witness Nitin Prabhakar Dhond, PW 3. PW 4 gave evidence about receiving specific and reliable information, reducing the information to writing, delivering a copy of the same to the Deputy Superintendent of Police, reaching the place and finding the appellant, informing the appellant of his right under Section 50 of the Narcotic Drugs And Psychotropic Substances Act and the appellant declining to exercise that right. PW 4 also deposed about the search then being carried on and the polythene bags being found in the pocket of the appellant as well as in the bushes. PW 4 deposed about the same being weighed and sealed for being sent for analysis. The prosecution also examined PW 5 Lavhu Mamledar, who was one of the raiding parties and PW 6 Deputy Superintendent of Police. They corroborated the evidence of PW 4. On the evidence, the Special Court convicted the appellant. The appellant then filed an appeal before the High Court and the High Court by the impugned judgment upheld the conviction.
4. Before us only two points have been urged. It is first urged that
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