Non-compliance with Section 50 of the NDPS Act, mandating the search to be conducted in the presence of a Magistrate or a Gazetted Officer, vitiates the search and seizure process, leading to the acquittal of the accused.

JUDGMENT :

1. For being found in possession of 100 kg ganja (cannabis), at 7:15 AM on 27th April, 2013, the appellant Sumit Rai @ Subodh Rai stands convicted, vide judgment dated 4th March, 2015, passed by the learned Additional Sessions Judge (hereinafter referred to as “the learned ASJ”) under Section 20(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the NDPS Act”). Consequently, vide order dated 10th March, 2015, the appellant has been sentenced, by the learned ASJ, to suffer, 10 years’ rigorous imprisonment (RI) alongwith fine of Rs. 1 lakh, with default simple imprisonment of 6 months’. He has been extended the benefit of Section 428 of the Code of Criminal Procedure, 1973.

2. The appellant is in appeal.

3. The appeal of the appellant is entitled to succeed on the basis of the judgment of the Supreme Court in Arif Khan v. State of Uttarakhand, AIR 2018 SC 2123, read with Dilip v. State of M.P., (2007) 1 SCC 450 and State of Rajasthan v. Parmanand, (2014) 5 SCC 345. Seen together, these decisions mandate that the search, pursuant to which narcotics are recovered from an accused, or from the person of an accused or from the baggage carried by an accused, where the accused is also searched alongwith his baggage, Section 50 of the NDPS Act mandates that the search be necessarily carried out in the presence of a Magistrate or a Gazetted Officer, even where the accused declines the offer, made to him in that regard. In the present case, the search of the appellant was not conducted in the presence of a Gazetted Officer or a Magistrate, on the ground that the appellant had refused the offer, extended to him in that regard. The ganja, the recovery of which has led to these proceedings, was found contained in four plastic bags, being carried by the appellant. His search was conducted alongwith the search of the bags. Rigorous compliance with the mandate of Section 50 of the NDPS Act was, in these circumstances, necessary, as per the law laid down in Arif Khan (supra) - which has been followed by me in, inter alia, Deepak Shamsher Thapa v. State, 256 (2019) DLT 543, Gurteg Singh Batth v. State, 254 (2018) DLT 551 and Sikodh Mahto v. State, 2019 SCC OnLine Del 8897 inasmuch as the appellant’s search was not conducted in the presence of a Magistrate or a Gazetted Officer, therefore, the search stood vitiated, and, with it, so did the alleged recovery of ganja and all the proceedings that emanated therefrom, culminating in the conviction and sentencing of the appellant.

4. A brief factual background may, however, be provided, for the sake of the record.

5. The version of the prosecution, which stands borne out by the statements of Const. Vijender (PW-6), Head Const. (HC) Charan Singh (PW-7), Insp. Sanjay Ghade (PW-8), is that, on 27th April, 2013, a secret informer visited the office of the Narcotics Cell, Shakarpur at about 6:40 AM and informed ASI Devender that the appellant, who used to deal in ganja would be arriving, between 7:00 and 7:30 AM, at Chatta Rail, Old Delhi, and would be carrying ganja. Pursuant thereto, a raiding party was constituted, consisting of ASI Devender, Const. Vijender (PW-6), HC Charan Singh (PW-7), Const. Shani Kumar and the Driver Const. Manoj Kumar. The said team reached the spot indicated by the secret informer at Chatta Rail at about 7:15 AM. There, they found the appellant, in the possession of four plastic bags, tied with plastic rope. The appellant was informed that, under Section 50 of the NDPS Act, he had a right to have his search, and the search of the bags found in his possession, carried out in the presence of a Magistrate or a Gazetted Officer. The appellant declined the request, whereupon the search of the appellant, and of the bags found in his possession was carried out by the Investigating Officer (I/O) ASI Devender. Each of the four bags was found to contain 25 kg of a substance, which, on being tested with the Drug Field Testing Kit carried by the