Compliance with S. 50 of the NDPS Act is mandatory, and non-compliance vitiates the search and seizure made.

This appeal is directed against the judgment and order of conviction passed by the learned Ist Additional Sessions Judge, Trivandrum convicting the accused-appellant for the offence punishable under S. 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPS Act') and sentencing him to undergo rigorous imprisonment for 5 years with a default clause.

2. The sum and substance of the prosecution case is that appellant-accused was found in possession of 160 gms. of ganja when the person of him was searched by P.W. 6 who was the then Circle Inspector of Police Fort Police Station, Trivandrum. The offence was alleged to be committed on 5-5-1994 at 4 p.m. When the police party consisting of P.Ws. 7, 4 and 5 was patrolling the area they found the appellant with a packet in his hand. Entertaining suspicion. P.W. 7 got down from the jeep and went near to the accused-appellant. On questioning him it was revealed that the packet he was holding in his hand contained ganja. That fact was immediately informed by P.W. 7 to his immediate superior officer (P.W. 6). P.W. 6 conducted search of the person of the accused-appellant and he was found in possession of 160 gms. of ganja in contravention of the provisions of the NDPS Act. Thus, it is alleged by the prosecution that the appellant-accused committed offence punishable under S. 20(b)(i) of the NDPS Act.

3. To connect the appellant with the crime alleged prosecution examined as many as 7 witnesses. P.W. 1 is an eye-witness to the occurrence examined by the prosecution to prove the fact of seizure of forbidden article from the possession of the appellant. P.W. 2 weighed the contraband seized from the possession of the appellant. P.W. 3 is the Chemical Examiner who proved Ext. P3 Chemical Examination report wherein it is stated that the samples sent for analysis from the Court were found to contain genuine ganja. P.Ws. 4 and 5 were policemen who were on patrol duty along with P.W. 7.

4. Assailing the conviction learned counsel for the appellant vehemently contended before me that the prosecution has no case about compliance of mandatory requirement of S. 50 of the NDPS Act and as there is violation of the mandatory provisions of S. 50 of the NDPS Act on the ground that seizure of contraband was made on conducting search of person of accused-appellant the conviction is not sustainable and the appellant is to be acquitted of the charge levelled against him.

5. The learned Public Prosecutor also fairly conceded before me that though it is the case of the prosecution that search of the person of accused-appellant was conducted and the contraband was seized from him on conducting search of his person there is no case for the prosecution that there was compliance of mandatory requirements of S. 50 of the NDPS Act.

6. The question that is to be considered in this appeal is whether the conviction of the accused-appellant is sustainable on the ground of non-compliance of S. 50 of the NDPS Act.

7. Even if the evidence given by the prosecution witnesses on the aspect of seizure of contraband is accepted as gospel truth conviction cannot be sustained on the ground that appellant-accused was not told about his valuable right to be searched in the presence of a Magistrate or a Gazetted Officer as mandated by S. 50 of the NDPS Act. None of the witnesses examined by the prosecution (P.Ws. 1, 2, 4 to 7) spoke about the fact of informing the appellant about his right to be searched in the presence of a Gazetted Officer or Magistrate by the searching officer (P.W. 6 conducted search of the person of the appellant). Evidence given by P.W. 7 is to the effect that while on patrol duty on the fateful day the appellant-accused was seen standing with a packet in his hand at the place described as scene spot in the seizure mahazar and on seeing the police party he made an attempt to conceal the packet in his hand (evidence shows that that packet was seized by P.W. 6 and it co