2006 (3) Crimes 339
KERALA HIGH COURT (DB)
K. Padmanabhan Nair and V. Ram
Kumar, JJ.
Swarnaki — Appellant
versus
State of Kerala — Respondent
Cri. A. No. 523 of 2000
Decided on 24-8-2005

IMPORTANT POINTS
1.Question of compliance with Section 50 of Narcotic Drugs and Psychotropic Substances Act arises only if empowered officer is acting on prior information.
2.If the officer conducting search informs the accused of his right to be searched in presence of a gazetted officer or magistrate alone, there is substantial compliance of Section 50 of Narcotic Drugs and Psychotropic Substances Act.
3.Provisions contained in Section 55 have no application when an authorised officer or empowered officer takes sample from contraband articles before same is delivered to police station.

Headnote:(i)Narcotic Drugs and Psychotropic Substances Act, 1985 — Section 20(B)(i) — Recovery of 25 grams of ganja from possession of appellant — Conviction by Trial Court — Appeal against conviction on non-compliance of mandatory provision of Section 50 — Validity — Question of complying with Section 50 arises only if empowered officer or a duly authorised officer is acting on prior information — Evidence to show that police party was on entirely different mission and accidentally stumbled upon appellant — Ganja happened to be seized by mere chance — If police party makes a search and arrest by chance it is not necessary to observe provisions of Section 50 — Police party came near bunk shop owned by appellant not for conducting any search in her shop or person of appellant, but to arrest accused in another case — Since police party was not acting on prior intimation regarding possession of any narcotic drugs by appellant, Section 50 held not applicable. — Again Section 50 applies in case of search of a person and hence compliance of Section 50 was not necessary regarding seizure of 17 packets from shop of appellant — Solitary packet was also handed over by appellant voluntarily.(Paras 24 to 27)

       (ii)Narcotic Drugs and Psychotropic Substances Act, 1985 — Section 20(B)(i) — Recovery of 25 grams of ganja from possession of appellant — Conviction by Trial Court — Appeal against conviction on plea of prejudice being caused to accused due to non-mentioning of his right to be searched from either of two categories of officers, Gazetted officer or Magistrate — Held real right of accused u/s. 50 is not an option between Gazetted Officer and Magistrate but an

       option to have his body searched by empowered or Authorised Officer either

       in presence of a Gazetted Officer or

       Magistrate — Hence even if accused

       was only given option of being searched in presence of magistrate and option of being searched in presence of Gazetted Officer was not put to him, there was sufficient compliance of Section 50.(Para 32)

       (iii)Narcotic Drugs and Psychotropic Substances Act, 1985 — Section 57 — Cr.P.C., 1973 — Section 58 — Recovery of 25 grams of ganja from possession of appellant — Conviction by Trial Court — Appeal against conviction on ground that since no report was sent to D.M., by officer conducting search, violation of provisions of Section 58 CrPC vitiated trial — Held provisions of Section 58 CrPC are not consistent with Section 57 of Narcotic Drugs and Psychotropic Substances Act — No statutory duty is cast on officer effecting arrest or seizure to send any report to D.M. — Even if officer conducting search fails to send any report, same would not make search and seizure illegal or vitiate trial.(Para 40)

       (iv)Narcotic Drugs and Psychotropic Substances Act, 1985 — Section 55 — Recovery of 25 grams of ganja from possession of appellant — Conviction by Trial Court — Appeal against conviction on non-compliance of Section 55 — Plea that officer conducting search not affixed his personal seal on sample packet as well as packet containing balance ganja — Held, if any contraband article is found in person of accused, officer conducting search has to arrest him and produce such person with contraband article seized before officer in charge of nearest police station — Officer in charge of police station takes charge of articles seized and may allow any person accompanying such seized article to police station to affix his seal on articles or samples thereof — However Section 55 has no application when an authorised officer or empowered officer takes sample from contraband articles before same is delivered to police station.(Paras 35, 36)

       (v)Narcotic Drugs and Psychotropic Substances Act, 1985 — Section 20(b)(i) — Quantum of sentence — Appellant convicted for being found in possessions of 25 grams of ganja — Appellant underwent imprisonment for more than five and a half months — Quantity seized was only 25 grams of ganja — Appellant convicted u/s. 20(b) prior to amendment of Section 20(b)(i) — Punishment imposed by Trial Court could not be set aside and appellant could not be convicted under provisions of amended section in view of Section 41 of Amending Act — However appellant being a widow aged 58 years and mother of three grown up daughters, substantive sentence already suffered, held sufficient to meet ends of justice.(Paras 42, 43)

       Result : Appeal partly allowed.