Procedural safeguards under Section 50 of the NDPS Act must be strictly complied with; failure to do so results in inadmissibility of evidence and potential acquittal.

Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985 - Section 22(b) - Conviction for possession of contraband - The conviction was challenged on grounds of non-compliance with Section 50, the burden of proof, and procedural delays - No written consent for search was produced, and the prosecution failed to explain the inordinate delay in submitting samples for analysis. (Paras 6, 10, 14, 19)

(B) Right during search under NDPS Act - An accused must be informed of the right to have a search conducted in the presence of a Gazetted Officer or Magistrate; failure to adhere to this requirement renders the evidence inadmissible. (Paras 12, 13, 14)

Facts of the case:
The appellant was found in possession of psychoactive substances during a police patrol, arrested, and later convicted despite raising doubts about the search process's compliance and evidence handling. (Paras 2, 4)

Findings of Court:
The investigation was deemed perfunctory, lacking critical evidence. The judgment was set aside, leading to the acquittal of the accused. (Para 20)

Issues: Whether the prosecution complied with Section 50 during the search and whether there was a reasonable explanation for the delay in forwarding the sample for analysis. (Paras 6, 13)

Ratio Decidendi: The court determined that procedural safeguards under Section 50 were not followed, and the onus to prove compliance rested on the prosecution, which failed to do so. (Paras 14, 19)

Result: The judgment of conviction was set aside, and the accused was acquitted.

JUDGMENT :

JOHNSON JOHN, J.

The appellant is the accused in S.C. No. 573 of 2011 on the file of the Additional Sessions Judge (Adhoc-I), Ernakulam and he is challenging the conviction and sentence imposed on him for the offence under Section 22 (b) of the Narcotic Drugs and Psychotropic Substances, Act, 1985 (‘NDPS Act’ for short) as per the impugned judgment dated 21.04.2012.

2. As per the prosecution case, the accused was found in possession of 3 ampules of diazepam of 2 ml. each and 9 other ampules without any labels on search of his person by PW1, the then Sub Inspector of Police, Harbour Police Station, Kochi on 14.09.2011 at 11.30 a.m. It is stated that while PW1 and party were patrolling in the area, they saw the accused in a suspicious circumstance. The accused was arrested at the spot and after effecting recovery, crime was registered by PW1 and thereafter PW6, the then Circle Inspector, conducted the investigation and filed the final report.

3. When the accused pleaded not guilty to the charge, PWs 1 to 6 were examined and Exhibits P1 to P10 and MOs 1 to 4 were marked from the side of the prosecution. No evidence adduced from the side of the accused.

4. After hearing both sides and analysing the evidence, the trial court found the accused guilty of the offence under Section 22 (b) of the NDPS Act and sentenced him to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.30,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of two years.

5. Heard Smt. Soorya S. Shenoy, the learned counsel representing the learned counsel for the appellant and Smt. Hasnamol N.S., the learned Public Prosecutor.

6. The learned counsel for the appellant argued that PW1, Sub Inspector who detected the case, failed to comply the requirements of Section 50 of the NDPS Act and that there is no satisfactory evidence in this case as to who was in custody of the contraband items and sample from 14.09.2011 till 10.10.2011. It is argued that the prosecution has not explained the inordinate delay in forwarding the sample for analysis and therefore, the accused is entitled for the benefit of reasonable doubt.

7. But, the learned Public Prosecutor argued that the evidence of PW1 would show that when PW1 informed the accused about his right under Section 50 of the NDPS Act, the accused declined to exercise the said right and therefore, there is no violation of the mandate of Section 50 of the NDPS Act and there is no reason to disbelieve the evidence of PW1 regarding the search and recovery of contraband items from the accused.

8. The evidence of PW1 shows that on 14.09.2011, at about 11.30 a.m., while he was conducting patrol duty along with police party, they saw the accused sitting on a motorcycle and attempting to start the motorcycle to move away on seeing the police party and accordingly, they stopped the accused and on questioning him, it is revealed that the pocket of his jeans contained psychotropic substance and thereupon, PW1 informed the accused about his right to have his search conducted in the presence of a gazetted officer or magistrate and when the accused waived the said right and informed PW1 that PW1 can conduct the body search, a written consent of the accused in this regard is obtained by PW1 and thereafter, he conducted the body search and recovered the contraband items. PWs 3 and 4 are the Civil Police Officers who accompanied PW1 for the patrol duty.

9. PW2 is the Village Officer who prepared Exhibit P8 scene plan. PW5 is the independent witness examined by the prosecution to prove the occurrence; but, he turned hostile to the prosecution and his evidence shows that he has not witnessed the alleged occurrence. PW1 deposed in chief examination that on the body search of the accused, a white plastic kit is recovered from the right side pocket of the jeans and the said plastic kit contained 3 ampules of diazepam of 2 ml. and 9 other ampules without any labels and currency notes amount