Procedural safeguards regarding search and seizure under the relevant narcotics legislation apply exclusively to personal searches. Recoveries made from baggage, containers, or vehicles do not require compliance with these specific provisions, and any waiver of the right to be searched before a gazetted officer should be documented in writing.

JUDGMENT :

A. BADHARUDEEN, J.

1. The sole accused in S.C.No.17/2005 on the files of the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act’ for short hereafter) has filed this appeal challenging conviction and sentence imposed against her in the said case as per judgment dated 02.02.2007.

2. Heard the learned counsel for the appellant/accused and the learned Public Prosecutor. Perused the verdict impugned as well as the records of the trial court.

3. In this case the prosecution alleges commission of offence punishable under Section 21(b) of the NDPS Act by the accused/appellant on the premise that 25.400 grams of brown sugar meant for sale was recovered from her conscious possession at 2.30 p.m on 17.11.2004.

4. The Special Court ventured the matter. PW1 to PW7 were examined and Exts.P1 to P14 were marked on the side of the prosecution. On the side of defense, DW1 was examined. On meticulous analysis of the evidence, the Special Court found that the accused had committed the offence punishable under Section 21(b) of the NDPS Act and accordingly she was sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months.

5. While assailing the verdict imposed by the Special Court, the learned counsel for the appellant/accused raised only one point to unsustain the same. The point urged is that Section 50 of the NDPS Act not at all complied while conducting search and therefore the entire prosecution is vitiated. Thus the appellant/accused is entitled for acquittal.

6. Whereas it is submitted by the learned Public Prosecutor that in this case, on perusal of the prosecution case, the total quantity of brown sugar contained in 41 very small plastic covers and 2 other long plastic covers were recovered and the recovery is not the outcome of any body search or search of a person and therefore Section 50 of the NDPS Act has no application in the instant case. Otherwise as per Ext.P2 the accused waived her right within the ambit of Section 50 of the NDPS Act. Therefore, the prosecution succeeded in proving the ingredients for the offence punishable under Section 21(b) of the NDPS Act and therefore the conviction and sentence are liable to be sustained.

7. In view of the rival submissions the points arise for consideration are:

(i) Whether the contention raised by the learned counsel for the appellant/accused that the prosecution failed to comply with the mandate of Section 50 of NDPS Act is sustainable?

(ii) Whether the Special Court is justified in holding that the appellant/accused committed the offence punishable under Section 21(b) of the NDPS Act?

(iii) Is it necessary to interfere with the impugned judgment in any manner?

(iv) The order to be passed?

Point No.(i)

8. Insofar as non compliance of Section 50 of the NDPS Act, the Special Court considered the same in paragraph 14 of the verdict impugned and held that Section 50 of the NDPS Act would not apply in the present case because brown sugar was not seized on body search of the accused. Now it is relevant to refer Section 50 of the NDPS Act, which reads as under:

“50. Conditions under which search of persons shall be conducted:-

(1) 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 perso