NAGENDRA SINGH v. STATE OF RAJASTHAN — 1996 DIGILAW 269 (RAJ)

Judgment D. C. DALELA, J. ( 1 ) THE short point on which the appeal is being decided does not require detailed discussion of facts and evidence. ( 2 ) ACCORDING to the prosecution, on 9th July, 1992 at 6. 50 P. M. at Ghaghar Nali Ki Puliya, Hanumangarh, 23. 500 Kgms. of powdered poppy heads were recovered from the possession of the accused appellant. He was charged for the offence under Sec. 8/15, NDPS Act hereinafter referred to as the Act. After recording the necessary evidence and hearing both the sides, the learned Special Judge, NDPS Act Cases, Sri Ganganagar vide his judgment dated 1. 2. 95 convicted the appellant for the above said offence and sentenced him to a rigorous imprisonment for ten years and a fine of Rs. one lac. Against the said conviction and sentence, this appeal has been preferred. I have heard the arguments of both the sides. In this case, it has not been proved that the provisions of Sec. 50 of the Act have been fully complied with. In the case of State of Punjab v. Balbir Singh, and in the case of Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, and in the case of Sayyed Mohd. v. State of Gujarat, it has been laid down by the Supreme Court that the provisions of Section 50 of the Act are mandatory and non-compliance whereof would vitiate the conviction. In Ali Mustaffa Abdul Rahman Moosas case, the Apex Court has observed: in State of Punjab v. Balbir Singh (supra), it has been held that before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a gazetted officer or of a Magistrate. It was also held that section 50 confers a valuable right on the person to be searched in the presence of a gazetted officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction. In Sayyed Mohd. It was also held that section 50 confers a valuable right on the person to be searched in the presence of a gazetted officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction. In Sayyed Mohd. v. State of Gujarat (supra), the Supreme Courts observations are: It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and also to fine which shall not be less than rupees one Iakh but which may extend to rupees two lakhs and the court is empowered to impose a fine exceeding rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved that an accused has committed an offence under it in respect of the articles covered by it for the session of which he fails to account satisfactorily. Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely the shiftily of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Section 50. To obviate any doubt as to the possession by the accused of illicit articles under the NDPS Act, the accused is to be conducted in the presence of a Gazetted Officer or a Magistrate, We endorse the finding in Balbir Singhs case 1994 AIR SCW 1802 that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. From the above observations, it is evident that it is imperative on the part of the officer conducting a search to inform the person to be searched of his right, if he so requires, to be searched before a Gazetted Officer or a Magistrate. From the above observations, it is evident that it is imperative on the part of the officer conducting a search to inform the person to be searched of his right, if he so requires, to be searched before a Gazetted Officer or a Magistrate. ( 3 ) IT is compulsory that the accused should be given both the options i. e. whether he wanted the search in the presence of a Gazetted Officer or in the presence of a Magistrate? Where both the options are not given, the provisions of Sec. 50 of the Act are not fully complied with. ( 4 ) IN this case, the search was conducted by the SHO PW 4 Sukhdev Singh Police Station, Hanumangarh town. He has deposed that before the search, he informed the accused appellant as to whether he wanted to be searched before a Gazetted Officer or by himself. The recovery memo is Ex. P. 1. In this memo also it has been mentioned that the accused appellant was asked immediately before the search as to whether he wanted to be searched in the presence of a Gazetted Officer or by himself (SHO ). From the statement of PW 4 and the recovery memo Ex P. 1, it is evident that the option of search in the presence of a Magistrate was not given to the accused appellant. Obviously, the provisions of Sec. 50 of the Act have not been fully complied with in this case and on this count alone the accused appellant is entitled to the acquittal and his conviction and sentence cannot be upheld. ( 5 ) IN the result, the appeal is allowed. The conviction and sentence of the accused appellant is set aside and he is acquitted of the offence under Sec. 8/15 of the Act. He shall be released forthwith if not required in any other case. Appeal allowed.