Point of Law: Section 50 of NDPS Act, 1985 is conditions under which search of persons shall be conducted.

Headnote:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22(c), 50, 42(2) – Drugs - Possession of commercial quantity of psychotropic substance - Appeal against conviction - Appellant is sole accused who is convicted and sentenced to undergo rigorous imprisonment – In absence of a search and seizure in compliance with provisions of Section 50, entire prosecution story against appellant would crumble - Para 30.
Finding of the Court :
Prosecution stated that appellant had given his consent to dispense with presence of gazetted Officer/Magistrate during search, that also in writing - If such communications in writing existed, prosecution ought to have produced same before court - Non-production of documents gives rise to serious doubt as regards compliance of law, to an extent that search and seizure get nullified - In absence of a search and seizure in compliance with provisions of Section 50, entire prosecution story against appellant would crumble – Court find that failure of prosecution to produce Section 50 communication/information before court has seriously prejudiced appellant and conviction of appellant cannot be justified under circumstances.
Result: Criminal Appeal is allowed.

JUDGMENT :

N. NAGARESH, J.

The appellant is the sole accused, who is convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1 lakh for the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and in default of fine, a rigorous imprisonment for a period of three months.

2. Crime No.1480/2006 was initially registered by Ernakulam Central Police against the appellant. The case of the prosecution was that on 09.11.2006 at 3.20 pm, PW2 while doing patrolling duty, got information that a person wearing black pants and rose shirt having narcotic drugs in a bag, is standing at Forshore Road, Ernakulam. The police went to the Foreshore Road and in front of the CIFNET office, the appellant was found carrying a small handbag. PW2 introduced his identity to the appellant and issued a notice stating that he is going to conduct body search of the appellant and asking whether the appellant needs it to be done in the presence of a Gazetted Officer or a Magistrate.

3. The appellant issued a letter in writing in English stating that PW2 himself may conduct the body search. On conducting body search, five ampules of Phenergan, five ampules of Lupigesic, four ampules of Diazepam IP, two ampules of Buprenorphine IP and one ampule of Diazepam Biofort were found in the handbag of the appellant. Possession of those drugs is in contravention of the provisions of the NDPS Act. Thus, the appellant committed offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('the NDPS Act, for short).

4. Before the Additional Sessions Court-VIII, Ernakulam, three official witnesses were examined as PWs 1 to 3. Exts.P1 to P12 and MO1 to MO3 were marked. After appreciation of evidence, the Additional Sessions Judge found that the appellant was found in possession of commercial quantity of psychotropic substance and that the offence under Section 22(c) of the NDPS Act is proved against the appellant. The Additional Sessions Judge consequently sentenced the appellant to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs.1 lakh. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for a period of three months. The appellant challenges the said judgment dated 25.07.2023 of the Additional Sessions Judge-VIII, Ernakulam in Sessions Case No.959/2017.

5. The appellant contended that the search was conducted in violation of Section 50 of the NDPS Act and the search is illegal. PW2 is alleged to have taken a letter in English from the appellant. The non-production of the letter in the court creates suspicion in the case put forth by the prosecution. The appellant urged that the prosecution ought to have procured the presence of independent persons to witness the formalities claimed to have been complied with at the time of search and seizure.

6. The appellant further urged that the finding of the court below that Section 50 need not be complied with as seizure was made from the handbag of the appellant and not from his body, is wrong and faulty. Even partial compliance of Section 50 will not meet the requirement. The appellant further argued that the evidence of the policemen are not reliable since they are interested witnesses. The court below ought to have given the benefit of doubt to the appellant.

7. The counsel for the appellant relied on the judgment of the Hon’ble Apex Court in Sk. Raju @ Abdul Haque @ Jagga v. State of West Bengal [(2018) 9 SCC 708] and argued that as soon as search of a person takes place, requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not.

8. The counsel for the appellant placed reliance on the judgment of the Apex Court in Baldev Singh v. State of Haryana [(2015) 17 SCC 554] and argued that if the court on an appraisal of the entire evidence does not entertain doubt