1995 (4) TMI 136 - SC - Customs

Conviction quashed as accused not informed of right to search before Gazetted Officer under Section 50 NDPS Act

SC set aside appellants' conviction under Section 20 of NDPS Act, 1985 and Sections 65-66 of Bombay Prohibition Act, 1949. Court held that accused must be ... Conviction of the appellants for offences punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and also under the provisions of Sections 65 and 66 of the Bombay Prohibition Act, 1949 Held that:- It is necessary that courts dealing with offences under the NDPS Act should be very careful to see that it is established to their satisfaction that the accused has been informed by the concerned officer that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of this right or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Section 50 were complied with. Instructions in this behalf need to be issued so that investigation officers take care to comply with the statutory requirement and drug peddlers do not go scot free due to non-compliance thereof. Such instructions would be of great value in the effort to curb drug trafficking. At the same time, those accused of possessing drugs should, however heinous their offence may appear to be, have the safeguard that the law prescribes. For the reasons aforestated, the conviction of the appellants under the NDPS Act and the sentence imposed upon them for the same must be set aside. For the conviction of the appellants under the provisions of the Bombay Prohibition Act no separate punishment was awarded. The High Court has not dealt with the aspect of these offences. As find that the `panchas’ did not support the evidence of PSIs Rathod and Rana, which further weakens the case that `charas’ was found in the possession of the appellants. We cannot, therefore, sustain their conviction under the Bombay Prohibition Act. Appeal allowed. Issues:- Conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act)- Compliance with Section 50 of the NDPS Act regarding the right to be searched in the presence of a Gazetted Officer or a Magistrate- Burden of proof on the accused under Section 54 of the NDPS Act- Presumption under Section 114 of the Indian Evidence Act, 1872- Duty of the court to raise presumption under Section 50 of the NDPS Act- Appeal against the judgment and order of the High Court of Gujarat- Conviction under the Bombay Prohibition ActAnalysis:The judgment pertains to an appeal against the conviction under the NDPS Act and the Bombay Prohibition Act. The High Court upheld the conviction of the appellants under Section 20 of the NDPS Act, sentencing them to ten years of rigorous imprisonment and a fine. The case involved the search and seizure of 'charas' from the appellants, leading to their conviction by the trial court. The appellants contended that they were not informed of their right to be searched in the presence of a Gazetted Officer or a Magistrate as required under Section 50 of the NDPS Act.The High Court considered the argument regarding the breach of Section 50 and the duty of the police officers to inform the accused about their search rights. It referred to the State of Punjab v. Balbir Singh case, emphasizing the mandatory nature of Section 50 and the importance of informing the accused of their search rights. The High Court held that the failure to inform the accused should lead to a presumption that the search was not conducted in accordance with the law.The Supreme Court reiterated the mandatory nature of Section 50 and the burden of proof on the accused under Section 54 of the NDPS Act. It emphasized the importance of informing the accused of their right to be searched in the presence of a Gazetted Officer or a Magistrate to ensure fairness and prevent misuse of power. The Court rejected the High Court's view on raising a presumption under Section 114 of the Evidence Act, stating that compliance with Section 50 must be satisfactorily established.The Court highlighted that the protection granted under Section 50 is crucial and cannot be overlooked due to procedural technicalities. It stressed the need for investigating officers to comply with the statutory requirements to prevent drug trafficking effectively. Ultimately, the Supreme Court set aside the conviction under the NDPS Act, emphasizing the significance of informing the accused of their search rights for a fair trial.Regarding the conviction under the Bombay Prohibition Act, the Court noted discrepancies in the evidence and lack of support from witnesses, leading to the acquittal of the appellants. The judgment allowed the appeal, setting aside the previous conviction and ordering the immediate discharge of the accused.