Saleem vs State Of Kerala
- CitationAIRONLINE 2002 SC 227
Ratio decidendi
The rule this decision rests on
Section 50 of the NDPS Act confers a mandatory right upon the accused to exercise an option whether to be searched in the presence of a gazetted officer or a magistrate; this right must be offered to and exercised by the accused before the search is conducted, and mere presence of a gazetted officer at the spot without affording the accused this choice does not constitute compliance with Section 50. Non-compliance with the mandatory safeguards prescribed under Section 50 of the NDPS Act is fatal to the prosecution's case, and where such safeguards have not been followed, the accused must be acquitted notwithstanding other evidence of possession, as the prosecution must bear the consequences of its procedural failures under the harsh provisions of the Act.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
1. We have heard the learned counsel for the parties and perused the record.
2. The appellant who was earlier acquitted by the trial court and later convicted by the High Court was charged for the commission of offence punishable under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced to three years' Rl besides paying a fine of Rs. 10,000/-, has assailed the judgment mainly on the ground of noncompliance of the provisions of section 50 of the Act.
3. The prosecution had alleged that appellant was found in possession of 1.650 kgs. of ganja and as before the search, a gazetted officer was present on spot, the provisions of section 50 of the Act are claimed to have been complied with. The High Court accepted the contention of the prosecution and convicted and sentenced the appellant as noted earlier.
4. A constitution bench of this Court in State of Punjab v. Baldev Singh, JT1999 (4) SC 595 has held that while conducting search and seizure in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the Act are also required to be followed, The harsh provisions of the Act cast a duty upon the prosecution to strictly follow the procedure and compliance of the safeguards.
5. In a latter judgment of this Court in Beckodan Abdul Rahiman v. State of Kerala, this Court held that the safeguards mentioned in section 50 are intended to serve a dual purpose to protect the person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. If the empowered officer fails to comply with the requirements of the section, the prosecution is to suffer for the consequences. Section 50 confers a right upon the accused to exercise his option as to whether he wanted to be searched in the presence of a gazetted officer or magistrate, which has not concededly been done in this case. As the mandatory provisions of Section 50 of the Act have not been complied with, the High Court was not justified in convicting and sentencing the accused appellant for the commission of the offence under the Act.
6. Under the circumstances of this case, the appeal is allowed by setting aside the judgment of the High Court, The appellant is acquitted of the charges framed against him. Bail bond furnished by the appellant accused is discharged.
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