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1995 Supreme(MP) 435
High Court Of Madhya Pradesh
J. G. CHITRA
RAJU S/o BALAJI KULKARNI - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Criminal Appeal 353 Of 1994
Decided On : 04/03/1995
G.DESAI, M.A.Bohra
Non-compliance of Section 50 of the NDPS Act, which mandates informing the accused of their right to be searched before a Magistrate or gazetted officer, is fatal to the prosecution case.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 50 - MANDATORY COMPLIANCE - RIGHT TO SEARCH BEFORE MAGISTRATE OR GAZETTED OFFICER - NON-COMPLIANCE - FATAL TO PROSECUTION CASE - CONVICTION AND SENTENCE SET ASIDE.
Fact of the Case:
The appellant was convicted and sentenced for possession of smack under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The appellant, a Madrasi person, claimed that he did not understand Hindi and was not informed of his right to be searched before a Magistrate or gazetted officer as required under Section 50 of the NDPS Act.
Finding of the Court:
The court found that the appellant did not understand Hindi and that the raiding party did not inform him of his right to be searched before a Magistrate or gazetted officer in a language that he understood.
Issues: Whether the non-compliance of Section 50 of the NDPS Act, which mandates informing the accused of their right to be searched before a Magistrate or gazetted officer, is fatal to the prosecution case.
Ratio Decidendi: The court held that the provisions of Section 50 of the NDPS Act are mandatory and that non-compliance of the same is fatal to the success of the prosecution case. The court further held that it is the duty of the raiding party to inform the accused of their right to be searched before a Magistrate or gazetted officer and that this right is a constitutional right that cannot be disregarded.
Final Decision: The court set aside the conviction and sentence of the appellant and ordered his release.
( 1 ) THE appellant has preferred this appeal from jail for assailing the order of conviction and sentence passed against him by Addl. Sessions Judge, Caroth in the matter of S. T. 342/91 wherein the learned A. S. J. convicted the appellant for offence punishable under Sections 8/21, of N. D. P. S. Act 1985 (hereinafter referred to as N. D. P. S. Act ). The appellant has been sentenced to undergo RI for 10 years and to pay fine of Rs. 1. 00 lakh for default to undergo RI for two years.
( 2 ) THE facts of the case need to be stated in brief for unfolding the prosecution case. On 8-9-1991, the raiding party raided a bogie of train No. 2904 up Frontier Mail. When the said train reached Bhawani Mandi Railway Station, P. W.-Harnamsingh had already received the information that two persons were carrying smack through the said train. Hence, he searched for those two persons in the said train, and when the members of raiding party approached the present appellant who was near the latrine in the compartment, the appellant was frightened. Because of suspicion the members of raiding party inter rogated the present appellant and thereafter took his search. 25 gms. of smack powder was found on the person of the appellant. A panchnama was drawn. The said smack was seized in presence of panch witnesses and sent to Sagar Laboratory for chemical examination which reported that the said powder was containing heroine. Thus, the appellant was indicted for offence punishable under provisions of Section 8/21 of N. D. P. S. Act.
( 3 ) LEARNED Addl. Sessions Judge after recording the evidence of prosecution witnesses concluded that prosecution had proved that smack was found in possession of the appellant in contravention of provisions of N. D. P. S. Act. He, therefore, recorded the conviction against him for offence punishable under Section 8/21 N. D. P. S. Act, and sentenced him as mentioned above and that is being assailed in this appeal.
( 4 ) SHRI Bohra, appointed by Legal Aid Commit tee to defend the appellant submitted that appellant is a Madrasi person and does not know Hindi at all. It being so, it was necessary for the investigating agency, the raiding party, to inform the appellant in the language which he understands that the appellant was entitled to get himself searched before a Magistrate or a gazetted officer when the appellant was apprehend ed. He argued further that as there is non compliance of mandatory provisions of Section 50 of N. D. P. S. Act, the conviction and resultant sentence will have to be set aside as illegal. After hearing this argument, this Court interrogated the appellant sufficiently for the purpose of understanding whether he understands Hindi. Some shrewed questions were also asked to get appellant surprised for the purpose of knowing whether he is making a show that he does not understand Hindi. The elaborate interrogation re vealed that appellant does not understand Hindi at all; but understands only Tamil and Kannad. Shri Desai, G. A. appearing for the prosecution also interrogated the appellant with the permission of the Court for the purpose of satisfying himself. He also found that appellant does not know Hindi at all. Shri Desai, Govt. Advocate justified impugned order.
( 5 ) IT has been held by Supreme Court in the matter of State of Punjab v. Balbirsingh, a judgment reported in 1994 SCC (Cri) 634 : (1994 Cri LJ 3702) that provisions of Section 50 of N. D. P. S. Act are mandatory and non-compliance of that is fatal to the success of prosecution case. Not only that, but it is the duty of the raiding party to inform the appellant that he is having a right to get himself being searched before a Magistrate or gazetted officer. It has been held by the Supreme Court that said right of the accused in a case under N. D. P. S. Act is a constitutional right and that can not be disregarded by the members of raiding party.
( 6 ) IN view of the observations made by the Supreme Court in the matter of
