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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. HEMALATHA, J.
Ayoouluwa David Adebakin & Another – Appellants
Versus
State Rep. by The Inspector of Police, Kancheepuram – Respondent
Crl.A. No. 863 of 2022 & Crl.M.P. No. 12202 of 2022
Decided On : 02-08-2023
NDPS Act - Conviction under U/s.8(c) r/w. 20(b)(ii)(B) and U/s.29(1) - Section 50, 42, 43, 52A, 55 of NDPS Act - The court discussed the compliance with the mandatory provisions of Section 50, 42, 43, 52A, and 55 of the NDPS Act, emphasizing the accused's right to be searched in the presence of a gazetted officer or a Magistrate, the procedure for seizure and custody of contraband, and the rules of evidence. The court also highlighted the importance of safeguarding against arbitrary and high-handed actions by the authorities and the need for foolproof procedures to establish guilt.
Fact of the Case:
The appellants, Nigerian students, were found in possession of ganja based on a tip-off. The prosecution presented evidence of the search, seizure, and custody of the contraband. The trial court found the accused guilty, and the present appeal challenged the conviction.
Finding of the Court:
The court found that the prosecution had complied with the mandatory provisions of the NDPS Act, including informing the accused of their right to be searched, the procedure for seizure and custody of contraband, and the rules of evidence. The court dismissed the appeal and confirmed the judgment of the trial court.
Issues: Compliance with mandatory provisions of the NDPS Act, the accused's right to be searched, the procedure for seizure and custody of contraband, and the rules of evidence.
Ratio Decidendi: The court emphasized the importance of complying with the mandatory provisions of the NDPS Act to safeguard the rights of the accused and establish guilt through foolproof procedures.
Final Decision: The Criminal Appeal was dismissed, and the judgment of the trial court was confirmed.
JUDGMENT
(Prayer: Criminal Appeal filed under Section 374 (2) Cr.P.C. r/w.36-B of NDPS Act, 1985 to set aside the conviction of the appellants in C.C.No.16 of 2020 dated 29.06.2022 by the learned Special Judge, Special Court for Exclusive Trial of Cases under NDPS Act, Chennai by allowing this appeal.)
1.This appeal is against the judgment dated 29.06.2022 in C.C.No.16/2020 (Crime No.47/2019) on the file of NIB-CID, Kancheepuram. This judgment was delivered by Principal Special Court under EC & NDPS Act, Chennai in and by which the accused were convicted and sentenced as detailed hereunder:
| Conviction | Sentence |
| U/s.8(c) r/w. 20(b)(ii)(B) of NDPS Act | Rigorous Imprisonment for 7years each and to pay a fine of Rs.50,000/- each, in default, toundergo simple imprisonment for 6 months each. |
| U/s.29(1) of NDPS Act | Rigorous Imprisonment for 7years each and to pay a fine of Rs.50,000/- each, in default, to undergo simple imprisonment for 6 months each. |
The aforesaid sentences were ordered to run concurrently.
2. Prosecution case in brief:
i. On 19.11.2019 at about 06.00 a.m. S.Prabakar, Inspector of Police (PW-5) attached to NIB-CID, Kancheepuram received a tip off regarding possession of ganja by the appellants near coffee day shop at Urappakkam, Kancheepuram.
ii. It was intimated by PW-5 to the Deputy Superintendent of Police by way of a note (Ex.P12) and took his permission to proceed to the spot along with his team consisting of M.Selvam (Sub Inspector of Police) (PW-1) and Linganathan (Head Constable of Police) (PW-2) with the required NDPS kits.
iii. They reached the place at 8 a.m. along with the informer who identified the two suspects. They apprehended them and the Inspector of Police (P.W.5) explained to them in english as to their right to be searched before the Magistrate or a gazetted officer to which they agreed to be searched by the police team. Subsequently A1 was searched and his black shouler bag contained Khaki
iv. At about 08.00 am the suspects were identified by the informer and then intercepted by the police team.
v. Both of them who were in possession of ganja were Nigerians with the names Ayoouluwa David Adebakin (A-1) and Olugu Olisaemeka Emmanuel (A-2).
vi. They were told about their rights under Section 50 of NDPS Act to be checked and searched in the presence of a Judicial Magistrate or any gazetted officer. Since they were ready to be searched by the police team, notices (Ex.P1 & Ex.P2) were served to both of them and found a shoulder bag from A-1 containing 4 kgs of ganja out of which two samples of 50 gms each were drawn from the seized ganja and marked as S1 & S2 and affixed seals NIB KPM on them.
vii. Remaining 3.9 kgs ganja also was packed on P-1. Signatures of the Investigating Officer (PW-5), A-1 and other policemen as witnesses were obtained on all the three packets.
viii. A mahazar (Ex.P3) also was prepared and signed by witnesses. Similarly, the A-2 also was in possession of 3 kgs of ganja in his shoulder bag out of which two samples of 50 gms each S3 & S4 were made and packed.
ix. The remaining 2.900 kgs also was packed as P-2 and all the three packets were sealed by affixing the seal of NIB KPM and signatures were obtained from PW-5, A-2 and the police witnesses.
x. A mahazar also was prepared (Ex.P-4) and signatures obtained from all.
xi. Subsequently, both A-1 & A-2 were arrested and arrest intimation memo Ex.P5 & Ex.P6 were recorded under Section 52(1) of NDPS Act. Inspection memo (Ex.P9 & Ex.P10) were prepared by the Investigating Officer (PW-5) stating that no fresh injuries and old injuries were on their bodies and also confession statements Ex.P7 & Ex.P8 were also reco
Compliance with the mandatory provisions of the NDPS Act is crucial to safeguard the rights of the accused and establish guilt through foolproof procedures.
Prosecution has to follow mandatory procedures during search and seizure of narcotic drugs and psychotropic substances.
Non-compliance with mandatory provisions of the NDPS Act, such as section 42(2) and section 50(4), can render the prosecution case doubtful and lead to acquittal.
Failure to comply with mandatory procedures under the NDPS Act vitiates conviction, necessitating primary evidence for a valid trial.
Possession of narcotic substances can result in conviction under NDPS despite procedural non-compliance if evidentiary strength supports prosecution's claims.
Non-compliance with mandatory procedures under the NDPS Act leads to vitiation of conviction, requiring strict adherence to evidence collection protocols.
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