2014 Supreme(Bom) 862

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SMT. V. K. TAHILRAMANI & V. L.ACHLIYA, JJ.
Thulile Goodness Dhalmini
Vs.
Union of India & Anr.
Criminal Appeal No.46 of 2013
Decided On: 8th April, 2014

Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search and seizure. - Non-compliance of mandatory provision of Section 50 of Act, vitiates conviction of accused who allegedly found in possession of contraband. - In the case of Ndukew, 1998 (1) Mh LJ 435, the appellant was to board a flight from Sahar International Airport. She was carrying a briefcase. While she proceeded to the Boarding Gate, Custom‘s sniffer dog barked after sniffing her shoes thereby giving indication that there was some narcotic substance hidden in the shoes. The Court observed that the customs officers had reason to believe that the appellant was carrying narcotic substances based on the fact that the sniffer dog barked after sniffing the shoes of the appellant. The Court held that the moment the authorities were suspicious that the appellant was carrying the contraband goods, they asked her to remove her shoes and also to open the brief case. This conduct of the officers who were present at the time of search would show that it cannot be said to be a chance recovery and once the officers had reason to believe that the appellant was in possession of narcotic substances, the procedure envisaged under Section 50 of the NDPS Act has to be followed as otherwise the whole search will be vitiated.

       The evidence of the above witnesses clearly shows that when the dog sniffed the grey coloured suitcase and barked, that was a positive indication of some narcotic substance. In such case, it cannot be said that it is a case of mere suspicion but it is a case of having “reason to believe“ that the accused was carrying narcotic drugs, hence, from this stage onwards, the officers should have complied with the mandatory provisions of the NDPS Act including Section 50. Moreover, Court has to bear in mind that the decision in the case of Sunil Kumar, Criminal Appeal 1101 of 2005 is rendered by a Bench of two-Judges whereas the decision in the case of Mohinder Kumar is rendered by three Judges. Obviously, the decision in the case of Mohinder Kumar, 1998 (8) SCC 655, holds the fort that if the officer has “reason to believe“ that the accused person is in custody of narcotic drug, the officer was under an obligation to proceed further in accordance with the provisions of NDPS Act.

       Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search and seizure. - Since officers of Air Intelligence unit had reason to believe that accused was carrying narcotic drug hence provisions of Section 50 of Act to be complied with. - In the case of V.S. Anandan v. Union of India, Decision dated 1.8.2013 in Criminal Appeal No. 451 of 2010 : 2014 All MR (Cri) 1312, in which question arose for consideration that where the contraband is found in the bag and the person of the accused is searched, whether compliance of Section 50 is necessary. Counsel for Union of India pointed out that in this decision, it was held that compliance of Section 50 is not necessary as the contraband was found in the bag. On perusal of the said decision, it is found that the said decision is rendered by a single Judge of the Court and moreover, the decisions in the case of Shah Alam, 2009 All SCR 2214, Noor Aga, 2008 All SCR 2161, and Gurjant Singh, 2013 All SCR 3759, were not pointed out to the Court. Had these decisions been pointed out to the Court, the single Judge would have taken a different view. In any event as it is a decision of a single Judge, the said decision is not binding on Court.

       It has clearly been held that if the contraband is found in a bag but the person of the accused is also searched, though nothing is found on the person of the accused, Section 50 of the NDPS Act would be attracted and non-compliance would vitiate the conviction.

       Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 50 - Search and seizure. - Where contraband was found in a bag taken by accused as cabin baggage therefore mandatory provisions of Section 50 of Act attracted. - In the present case, the appellant was not informed of her right to be searched before a Gazetted Officer or a Magistrate, thus, there is non-compliance with Section 50 of the NDPS Act which has been held to be mandatory. The compliance of the requirement under Section 50 of informing the suspect of his right to hold search and seizure before a Gazetted Officer or a Magistrate is not an empty formality. In other words, the offer to be searched to the person in presence of a Gazetted Officer or a Magistrate should really serve the purpose of ensuring that there was every bona fide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum.

       In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted Officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted Officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against. In other words, the purpose of Section 50 was to ensure that the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities. Therefore, such a requirement of law prescribed under Section 50 cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it.

       It is well-settled that the offence committed under the NDPS Act is a grave one, hence, procedural safeguards provided therein in terms of Section 50 of the NDPS Act have to strictly complied with. Thus when the alleged recovery of heroin from the appellant was made in complete violation of the provisions of Section 50 of the NDPS Act, then the conviction is vitiated.