Abdul Rahman vs State Of Kerala

1. The appellant in this case was convicted under Section 20(b)(i) of the Narcotic Drugs & Psychotropic Substances Act for possessing contraband ganja. According to the prosecution case, some quantity of ganja was recovered when the person of the accused was searched and the remaining quantity of ganja was recovered from the premises of the accused. Accepting the prosecution case, the trial court convicted the accused and the High Court has upheld the conviction. The High Court has not however accepted the alleged recovery of ganja from the premises of the accused but the case of recovery of 56 small packets of ganja from the pockets of the underwear of the accused has been accepted by the High Court. It, however, appears that such recovery has not been supported by PWs 3 and 4 who are the witnesses to such seizure. Moreover, on the personal search reg ister, it was not stated that the accused was wearing underwear from the pockets of which the said small packets of ganja had been recovered. In the general diary there is no mention of the seizure of 56 packets of ganja. The trial court has brushed aside such facts by indicating that such lapses did not affect the prosecution case in view of the other evidences. It however appears to us that apart from such infirmity, the mandatory provision of Section 50 of the Narcotic Drugs & Psychotropic Substances Act has not been complied with in this case. The accused was not told that he could get himself searched in the presence of a Gazetted Officer or before a Magistrate under the Narcotic Drugs & Psychotropic Substances Act. The alleged seizure was made by searching the person of the accused straightaway by the police officer. Even though such search and seizure had been made prior to the decision of the Court in Balbir Singh's case the illegality of such search and seizure as indicated by this Court operates. Accordingly even on the score of illegality in search and seizure the accused appellant is entitled to get an order of acquittal. We, therefore, allow this appeal and set aside the conviction and sentence. The appellant is directed to be released forthwith if he is not wanted in connection with any other criminal case.