2011 (7) TMI 1026 - SC - Customs

Supreme Court acquits appellant due to non-compliance with NDPS Act, rules confession inadmissible.

The Supreme Court set aside the appellant's conviction for violating Section 22 of the NDPS Act due to non-compliance with Section 50, as the consent memo ... Whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the NDPS Act”) casts a duty on the empowered officer to “inform” the suspect of his -6-right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the said section? Issues:Violation of provisions of Section 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985; Compliance with Section 50 of the Act; Admissibility of confession made to a Custom Officer under Section 108 of the Customs Act.Violation of Provisions of Section 22 of the NDPS Act:The appellant was apprehended with brown powder identified as heroin during a joint Naka operation. He confessed to possession, and the Chemical Examiner confirmed the substance. The Trial Court convicted him based on evidence, including his confession to a non-police officer. The High Court upheld the conviction, leading to the appeal.Compliance with Section 50 of the Act:The appellant's counsel argued that the consent memo did not comply with Section 50 as it did not inform the appellant of his right to be searched before a Gazetted Officer or a Magistrate. Referring to previous judgments, the Supreme Court emphasized that strict compliance with Section 50 is mandatory. The Court found that the consent memo did not convey the required information, leading to non-compliance and vitiating the prosecution.Admissibility of Confession Made to a Custom Officer:The appellant's counsel relied on a previous judgment stating that confessions made to Custom Officers were inadmissible under Section 25 of the Evidence Act. However, the respondent's counsel argued that a coordinate Bench judgment reiterated the admissibility of such confessions. The Court analyzed the conflicting judgments and decided to follow the precedent that a confession to a Custom Officer is inadmissible under Section 25 of the Evidence Act.In conclusion, the Supreme Court found non-compliance with Section 50 of the Act regarding informing the appellant of his right to be searched before a Gazetted Officer or a Magistrate. Additionally, the Court upheld the inadmissibility of the confession made to a Custom Officer. Consequently, the appellant's conviction was set aside, and the Court ordered his acquittal.