Point of Law : NDPS Act- Section 54 of the NDPS Act arises only if the search and recovery was in strict compliance with the provisions of Section 50 of the NDPS Act.

JUDGMENT :

This appeal has been filed by the third accused in S.C.No.23 of 2005 on the file of the Special Judge (NDPS Act Cases), Vadakara, challenging the conviction and sentence imposed on him by that court for an offence under Section 21(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act).

2. The gist of the prosecution case is that at about 05.00 pm on 30.08.2004, the appellant/3rd accused together with accused 1 and 2 were found in possession (jointly) of a total quantity of 200gms of brown sugar meant for sale. Out of the total quantity, 80 grams were seized from the possession of the appellant/3rd accused, 50 grams were seized from the possession of the 1st accused (now deceased) and 70 grams were from the possession of the 2nd accused. All the three accused were arrested on the spot by the Circle Inspector. Following the investigation, a final report was filed before the Court. A charge was framed alleging the commission of offence under Section 21(b) of the NDPS Act against the third accused as the first accused was no longer alive by that time and the second accused was absconding. The charge under Section 21(b) was for the possession of 200 grams of brown sugar jointly by all or alternatively for the possession of 80 grams of brown sugar by the appellant/3rd accused separately. On the appellant/3rd accused pleading not guilty, the case was posted for trial.

3. The prosecution examined 9 witnesses including the Circle Inspector of Police, who detected the offence and also marked Exts.P1 to P14 and material objects MO1 to MO4. Following the closure of the prosecution evidence, the appellant/accused was questioned under Section 313 of Cr.P.C and he denied all the incriminating evidence against him and alleged that the case was falsely foisted by the police at the instance of another person, who is not in good terms with the appellant/3rd accused. Despite the opportunity, no defence evidence was adduced. Taking into account the evidence tendered by the prosecution witnesses, the Court convicted the appellant/3rd accused for committing an offence under Section 21(b) of the NDPS Act and sentenced the appellant/3rd accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.20,000/-and in default thereof to undergo rigorous imprisonment for a further period of one year for the offence under Section 21(b) of the NDPS Act. Set off as permissible in law was also permitted.

4. Heard Sri.T.G.Rajendran, the learned counsel appearing for the appellant/3rd accused and the learned Public Prosecutor for the State.

5. It is the primary contention of the learned counsel for the appellant that a reference to Ext.P6 seizure mahazar and to the evidence tendered by PW1 (the detecting officer) would show that the entire prosecution case must fail since there was a failure to comply with the mandatory procedure under the NDPS Act for conducting a search of persons for the recovery of contraband articles. He submits that the law on this point is settled by various decisions of the Supreme Court. He refers to the judgments of the Supreme Court in Man Bahadur v. State of Himachal Pradesh 2008 (4) KLT 319, State of Rajasthan v. Parmanand 2014 (1) KLT 1030 and to Arif Khan Alias Agha Khan v. State of Uttarakhand AIR 2018 SCC 2123 and contends that once the mandatory procedure under Section 50 of the NDPS Act is found to be violated, the appellant/3rd accused is entitled to be acquitted.

6. The learned Public Prosecutor on the other hand submits that there is no question of violation of the procedure prescribed by Section 50 of the NDPS Act, in this case. He refers to the provisions of Section 50 and has also referred to the judgment of a Constitution Bench of the Supreme Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609.

7. Before considering the primary contention raised, it will be convenient to decid