Point of Law: Section 50 would come into play only in the case of a search as distinguished from search of any premises etc.

JUDGMENT :

The sole accused in S.C.No.29/2005 on the file of the IV Additional Sessions Judge, Ernakulam, who is aggrieved by conviction and sentence imposed against him in the above case, as per judgment dated 12.12.2007, has preferred this appeal under Section 374(2) of Cr.P.C. The offence alleged is one punishable under Section 20(b)(ii)B of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act').

2. The appellant herein is the accused before the trial court and the respondent herein is the State of Kerala represented by the learned Public Prosecutor.

3. Heard the learned counsel for the appellant as well as the learned Public Prosecutor.

4. Shorn off unnecessary details, the prosecution case is as follows:

It is alleged by the prosecution that the accused was found in possession of 5kg of Ganja wrapped up and concealed in a big shopper held by him, without any authorisation, against the sanctions in the NDPS Act. On search, the said contraband was recovered; he was arrested and crime was registered alleging commission of offence under Section 20(b)(ii)B of the NDPS Act.

5. The learned Additional Sessions Judge tried the matter, after complying pre-trial formalities and during trial, PWs 1 to 6 were examined and Exts.P1 to P11 were marked. Thereafter, the accused was questioned under Section 313(1)(b) of Cr.P.C. and his explanations to the incriminating circumstances found in evidence got recorded. Ext.D1, index in crime No.984/2004 prepared by JFCM-II, Ernakulam was marked, availing the opportunity given by the trial court to adduce defence evidence.

6. The trial court, on appreciation of evidence, convicted the appellant under Section 20(b)(ii)B of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of three years and also to pay fine of Rs.50,000/-. In default of payment of fine, rigorous imprisonment for a period of one year also was imposed. Set off also was allowed.

7. While assailing the judgment of the Additional Sessions Court, the learned counsel for the appellant given much emphasis to Ext.P4(a), the original letter given by the Detecting Officer, addressing the Tahsildar to secure his presence. Ext.P4 is the copy of the same. According to the learned counsel for the appellant, since Exts.P4 and P4(a) were not produced along with the final report and the same got marked during examination of PW6, forming part of the case diary, there is non-compliance of Section 207 of Cr.P.C. She also submitted that thereby mandatory compliance of Section 50 of the NDPS Act is vitiated and accordingly, the appellant is entitled to get acquittal. She also argued that the independent witnesses, who signed Ext.P1 seizure mahazar, also deposed during cross-examination that he did not see the vehicle of Tahsildar at the place of occurrence and therefore, the presence of Tahsildar at the place of occurrence is not established fully, and the same also creates doubt in the prosecution case in the matter of compliance of the mandate of Section 50 of the NDPS Act. Apart from that nothing argued to find lacuna in the prosecution case and to substantiate acquittal.

8. However, the learned Public Prosecutor vehemently supported the conviction and sentence, highlighting the evidence of PWs.1 to PW6 and Exts.P1 to P11.

9. In order to address non-compliance of Section 50 of the NDPS Act for want of production of Exts.P4 and P4(a) before the committal court along with the final report, it is necessary to venture as to whether in which cases compliance of Section 50 of the NDPS Act is mandatory. In this regard, I am inclined to extract Section 50 of the NDPS Act and the same is as under:

“50. Conditions under which search of persons shall be conducted.-When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazette