IMPORTANT POINT
Section 50 of N.D.P.S. Act confers a valuable right on the person to be searched in the presence of a gazetted officer or Magistrate if he so requires & the failure to provide that option vitiates conviction.

JUDGMENT

Dr. Anand, J. - The appellant, a Kuwait national, was convicted for an offence under Section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter 'the N.D.P.S. Act') and sentenced to suffer imprisonment for 11 years and a fine of Rs. 1 lac by the learned Sessions Judge, Quilon. His appeal against the conviction failed before the High Court of Kerala though the sentence of imprisonment was reduced to 10 years R.I. The imposition of fine of Rs. 1 lac as also the imprisonment in default of the payment of fine as imposed by the Trial Court was, however, maintained.

2. According to the prosecution case, on 12.10.1988 at about 11.15 p.m., the appellant was found in possession of 780 gms. of charas in the first class waiting room of the railway station at Quilon. P.W. 6, Ashok Kumar. Sub-Inspector of Police attached to the Quilon railway station, on receipt of reliable information that a foreigner having charas in his possession was sitting at the Quilon railway station, went to the platform where P.W. 1 Constable Nataraja Pillai was on patrol duty. Both P.W. 1 and P.W. 6 went to the first class waiting room. The appellant was found sitting there with a bag. On suspicion, he was questioned by P.W. 1 and P.W. 6. The appellant took out a small packet of charas from his bag and handed it over to P.W. 6. On further questioned and search, P.W. 6, recovered three big packets of charas from the bag which was in possession of the appellant. The seizure of charas was effected in presence of the witnesses on the spot itself and the contraband was taken into possession after making the mahazar. The other valuable articles which were with the appellant were also taken into custody, after preparing the recovery memo. The contraband was weighed and in the presence of witnesses, a small portion from each of the four packets of contraband, was taken as sample for examination. The search and seizure lasted till about 5.00 a.m. on 13.10.1988. The appellant was arrested on the spot and produced at the police station adjacent to the railway station. The seized articles were kept in safe custody of the police station and the appellant was produced before the Magistrate, after the registration of the case. After further investigation, the charge-sheet was filed before the Chief Judicial Magistrate, Quilon who committed the case to the Sessions Court for trial.

3. Six witnesses were examined by the prosecution and various articles as recovered, from the possession of the appellant were exhibited as material objects. The contraband was found by the expert to be "charas". The appellant in his statement under Section 313 Cr. P.C. denied the seizure and disowned the bag from which the contraband had been recovered and seized and asserted that it was an abandoned bag and that the appellant had been un-necessarily linked up with the seizure of the contraband on misguided suspicion.

4. Though a number of submissions were made by learned counsel for the appellant, we need not detain ourselves to deal with all those submissions as in our opinion there is force in the main argument of the learned counsel for the appellant viz. that on account of the non-compliance with the provisions of Section 50 of the N.D.P.S. Act, which provisions have been held to be mandatory by this Court in State of Punjab v. Balbir Singh1, the conviction and sentence of the appellant cannot be sustained.

5. From the testimony of P.W. 6, it is apparent that before reaching the first class waiting room at the railway station, 'he had received information that a foreigner was sitting with charas at the railway station. The appellant was thereafter spotted and subjected to search and from his possession allegedly 780 gms of charas was seized. Undoubtedly, before the search of the appellant was made, he was not given any option as to whether he desired to be searched in the presence of a gazetted officer or a Magistrate as envisaged by Section 50. In Stat