Section 50 of the N.D.P.S. Act applies to both cases of recovery on prior information and chance recovery. Failure to inform the accused of his right to be searched before a Magistrate or a Gazetted Officer vitiates the trial.

Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - SEARCH AND SEIZURE - RIGHT TO BE SEARCHED BEFORE A MAGISTRATE OR A GAZETTED OFFICER - SECTION 50 OF THE N.D.P.S. ACT - APPLIES TO BOTH CASES OF RECOVERY ON PRIOR INFORMATION AND CHANCE RECOVERY - FAILURE TO INFORM THE ACCUSED OF HIS RIGHT TO BE SEARCHED BEFORE A MAGISTRATE OR A GAZETTED OFFICER - VITIATES THE TRIAL - CONFESSION - VOLUNTARY AND TRUE - CAN BE THE BASIS OF CONVICTION - CORROBORATION - NEED NOT BE IN RESPECT OF EACH FACT OR CIRCUMSTANCE CONTAINED IN THE CONFESSION - GENERAL CORROBORATION IS SUFFICIENT.
Fact of the Case:

The appellant was convicted and sentenced for possession and attempt to export brown sugar. The prosecution's case was that the appellant was found in possession of 490 gms of brown sugar concealed in the cavities of his slippers at the Sahar Airport. The appellant's confessional statement was recorded under section 108 of the Customs Act, in which he admitted to smuggling the brown sugar from Nigeria. The appellant retracted his confessional statement during the trial.
Finding of the Court:

The court held that the appellant's right to be searched before a Magistrate or a Gazetted Officer, as mandated by section 50 of the N.D.P.S. Act, was violated. However, the court also held that the subsequent decisions of the Supreme Court render the appellant's submission that denial of the right to be searched before a Magistrate or a Gazetted Officer would vitiate his entire trial to be incorrect in law. The court further held that the appellant's confessional statement was voluntary and true, and that it was corroborated by other evidence on record. Therefore, the court upheld the appellant's conviction.
Issues: 1. Whether the appellant's right to be searched before a Magistrate or a Gazetted Officer, as mandated by section 50 of the N.D.P.S. Act, was violated? 2. Whether the appellant's confessional statement was voluntary and true? 3. Whether the appellant's confessional statement was corroborated by other evidence on record?
Ratio Decidendi: 1. Section 50 of the N.D.P.S. Act applies to both cases of recovery on prior information and chance recovery. Failure to inform the accused of his right to be searched before a Magistrate or a Gazetted Officer vitiates the trial. 2. A confession is voluntary and true if the court is satisfied that it was made without any coercion or inducement. Corroboration of a confession need not be in respect of each fact or circumstance contained in the confession. General corroboration is sufficient.
Final Decision: The court partly allowed the appeal. The court maintained the appellant's jail sentence and the sentence of fine on both the counts, but reduced the sentence in default of payment of fine on both the counts from two years R.I. to six months R.I.

JUDGMENT - VISHNU SAHAI, J.:---Through this appeal the appellant challenges the judgment and order dated 28-7-1994, passed by the Special Judge (N.D.P.S. Special Court) at Bombay, in N.D.P.S. Special Case No. 101 of 1990, whereby he has been convicted and sentenced in the manner stated hereinafter:-

(i) Under section 8(c) of the N.D.P.S. Act, to suffer R.I. for 10 years and to pay a fine of Rs. 1 lakh in default, to undergo R.I. for 2 years: and

(ii) Under section 8(c) r/w section 28 of the N.D.P.S. Act to undergo R.I. for 10 years and to pay a fine of Rs. 1 lakh in default to suffer R.I. for 2 years.

The substantive sentences of the appellant were ordered to run concurrently.

2. In short, the prosecution case runs as under:-

2A. On 28-10-1989, Talya Subbarao Jayaram P.W. 1 was attached to Air Intelligence Unit, B-Batch, as Superintendent and Munnalal Baburam, P.W. 4 was attached thereto as an Intelligence Officer. The said officers were posted at Module II of Sahar Airport. At about 3/3.30 a.m. the same day, they found the appellant at the Customs Clearance Counter. He was about to board Flight No. ET-661 of Ethiopian Airlines for Addis Ababa. They suspected him to be in possession of illicit drugs and expressed their intention to conduct his search. When they questioned him, in the presence of public panch Zulfikar Zahur Khan P.W. 8, whether he was carrying any narcotics either on his person or in his baggage, he replied in the negative. On examining his handbag, they found nothing incriminating. Not satisfied, they called dog handler Santosh Desai, P.W. 3 who came along with the sniffer dog 'Pooja', trained by him. Santosh Desai directed Pooja to sniff the handbag of the appellant but, Pooja gave no indication of concealment of any drugs therein. Thereafter, Santosh Desai ordered Pooja to sniff the person of the appellant and on sniffing it, Pooja gave a signal about the concealment of drugs in the slippers, worn by the appellant. Thereafter, the appellant was brought to the Air Intelligence Unit and his slippers were meticulously examined and Talya Jayaram and others found that there was a cavity in both of them, and from the cavities in each of them, polythene bags containing powder were recovered. Small quantity of the powder was tested with the help of U.N. Kit and the test indicated in positive presence of heroin. The aggregate weight of the powder recovered from each of the polythene bags was 490 gms. The recovery was made under panchanama and on the seals etc., signatures of the witnesses and appellant were taken. The appellant was carrying an Airlines ticket which was also taken under a panchanama.

2B. Thereafter, the same day summons were issued to the appellant for recording his statement under section 108 of the Customs Act. A warning was given to him that if he gave false evidence he would be liable for prosecution under section 193 I.P.C. Thereafter, his confessional statement was recorded. In the said statement, the appellant stated that he was unmarried; had studied up to 12th Standard in English medium and was jobless. He also stated therein that his cousin brother Godson Uzor who stays in Nigeria and was dealing in narcotic drugs along with his Pakistan National friend Mohd. Uttam, asked him whether he was willing to go to India to bring narcotic drugs for monetary considerations and as he was in need of money he agreed. Godson booked his ticket from Lagos to Delhi, where he arrived on 22-10-1989. Godson had also told him that at Delhi, a person would meet him who would give the address of Agra, where Mohd. Utman lived and the latter would give him some brown sugar and Airlines ticket for Delhi/Bombay/Addisababa. At Delhi, the appellant met the contact man who took him to Mohd. Utman who gave him one polythene bag containing narcotic drugs and a Ethiopian Airlines ticket for sector Delhi/Bombay/Addis Ababa and Mohd. Utman asked him to conceal the brown sugar in slippers. On 28-10-1989, the appellant came by Fl

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Judicial Analysis

1998 Supreme(Bom) 202

Section 50 of the N.D.P.S. Act applies to both cases of recovery on prior information and chance recovery. Failure to inform the accused of his right to be searched before a Magistrate or a Gazetted Officer vitiates the trial.

Cases Referred (2)

Judicial Analysis