The provisions of Section 50 of the NDPS Act are mandatory and must be strictly complied with. The consent of the accused to be searched by the police officials without the presence of a Gazetted Officer/Magistrate is irrelevant. The failure to comply with the provisions of Section 50 of the NDPS Act renders the conviction unsustainable.

JUDGMENT :

Vibhu Bakhru, J.

1. The appellant has filed the present appeal impugning a judgment dated 23.12.2016 passed by the ASJ, Special Judge (NDPS), Saket Courts, whereby the appellant was convicted under Section 21(b) of the Narcotics, Drugs and Psychotropic Substances Act, 1985 (hereafter the 'NDPS Act') and Section 14(a) of the Foreigners Act, 1946. By an order dated 26.12.2016, the appellant was sentenced to undergo four years of rigorous imprisonment and a fine of Rs.50,000/- for the offence under Section 21 of the NDPS Act. And, in default of payment of the said fine, to undergo simple imprisonment for a further period of three months. He was further sentenced to undergo rigorous imprisonment for a period three years and a fine of Rs.10,000/- for the offence under Section 14(a) of the Foreigners Act, 1946. And, in default of payment of the said fine, to undergo simple imprisonment for a period of one month. Both sentences were ordered to run concurrently.

2. The Trial Court had found that the appellant was guilty of being found in possession of 25 grams of cocaine. The principal controversy to be addressed in this appeal is whether the appellant's search conducted by police officials - which yielded 25 grams of cocaine - was not compliant with the provisions of Section 50 of the NDPS Act, as it was not conducted in the presence of Gazetted Officer/Magistrate. Context

3. Briefly, the case of the prosecution is that on 04.06.2015, SI Shiv Darshan Singh, Narcotic Cell, Crime Branch, Daryaganj was informed by a secret informer that a person namely Innocent, resident of the Arjun Nagar area, is a supplier of cocaine in Delhi and would be coming to Sudarshan Marg, Gautam Nagar, Delhi between 06:30 pm and 07:00 pm to supply cocaine. A raiding party was constituted, which reached the spot at about 06:30 pm. At 06:55 pm, the informer pointed towards the accused who was wearing black t-shirt and green capris. When the accused was 5-7 steps away from the police officials, he became suspicious and started going back. At this moment, he was apprehended by the raiding team.

4. Si Shiv Darshan informed the accused that his search was going to be conducted. He also explained to the accused his legal right to be searched before a Magistrate or a Gazetted officer. However, the appellant declined the offer of being searched before a Gazetted Office/Magistrate. SI Shiv Darshan asked some passersby to join the proceedings, but none agreed. On search of the accused, a semitransparent polythene pouch tied with a rubber band was recovered from the left pocket of the accused's capris. It contained a white coloured substance. Upon testing using the field-testing kit, the said substance, which weighed 25 grams, tested positive for cocaine.

5. Thereafter, SI Shiv Darshan prepared the rukka and sent HC Satyawan to PS, Crime Branch for registration of an FIR. After registration of the FIR, investigation was assigned to SI Rajveer Singh. Investigation revealed that the appellant's name was Innocent Uzoma. He was a Nigerian national and had entered India on a seminar/conference visa, which was valid up to 19.11.2014. He had overstayed the term of his visa and was thus, an illegal migrant.

6. Charges for commission of offences under Section 21(b) of the NDPS Act and Section 14(a) of the Foreigners Act, 1946 were framed against the accused, to which he claimed not guilty. Accordingly, the matter was set down for trial.

7. The Trial Court found that the prosecution had established, beyond reasonable doubt, that the appellant was found in possession of 25 gms of cocaine and thus, found him guilty of the offence under Section 21(b) of the NDPS Act. Further, the Trial Court also found that the appellant was guilty of exceeding his stay in India beyond the term of the visa issued to him and therefore, was guilty of the offence under Section 14(a) of the Foreigners Act, 1946.

Evidence

8. The prosecution examined twelve witnesses, while the defence chose to not exam