2002 (4) TMI 912 - SC - Customs

Whether there were violation of the mandatory provisions? Held that - In this case the violation of the mandatory provisions is writ large as is evident from the statement of K.R. Premchandran (PW1). After recording the information the witnesses is not shown to have complied with the mandate of sub-section (2) of Section 42 of the Act. Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in presence of a Gazetted Officer or Magistrate. The compliance of Section 50 is held to have been fulfilled on his (PW1) asking the accused whether I should search him in the presence of senior officers or Gazetted officer . The accused was required to be apprised of his right conferred under Section 50 giving him the option to search being made in presence of gazetted officer or the Magistrate. The accused is not shown to have been apprised of his right nor any option offered to him for search being conducted in the presence of the Magistrate. We are of the firm opinion that the provisions of sub-section (2) of Section 42 and the mandate of Section 50 were not complied with by the prosecution which rendered the case as not established. In view of the violation of the mandatory provisions of the Act the appellant was entitled to be acquitted. Both the trial court as well as the High Court have failed to consider this aspect of the matter which warrants the setting aside of the impugned judgment. Appeal allowed.

Summary

Issues:
Conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 based on possession of opium without a license. Alleged violation of Sections 42 and 50 of the Act during the investigation process.

Analysis:
The appellant was convicted under Section 9(c) read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for possessing 11 gms. of opium without a license. The appellant was sentenced to 10 years of rigorous imprisonment, a fine of Rs.1 lakh, and further imprisonment in default of fine payment. The appeal challenged the conviction primarily on the grounds of non-compliance with Sections 42 and 50 of the Act. The prosecution argued that there was substantial compliance with the Act's provisions, thus no interference was warranted.

The prosecution's case was based on the Sub Inspector of Police receiving a telephonic message about narcotic drugs being sold at a specific location. The Sub Inspector, upon reaching the scene, found the accused in a suspicious condition and conducted a search leading to the discovery of opium concealed in the appellant's clothing. The appellant was arrested, and the opium was seized and weighed. Section 42 of the Act empowers officers to enter, search, seize, and arrest without a warrant under certain conditions, while Section 50 outlines the conditions for conducting searches on individuals.

The Supreme Court emphasized the importance of strict compliance with procedural safeguards provided in the Act, especially considering the severe penalties and consequences associated with possession of illicit substances. Referring to previous judgments, the Court reiterated that Sections 42 and 50 are mandatory, and any non-compliance renders the investigation illegal. Failure to adhere to these provisions not only jeopardizes the prosecution's case but also undermines the legitimacy of the judicial process and respect for the law.

In this case, the Court found clear violations of the mandatory provisions of Sections 42 and 50. The prosecution failed to comply with the requirements of sending information to the official superior and offering the accused the option of being searched in the presence of a Gazetted Officer or Magistrate. Due to these violations, the Court concluded that the appellant was entitled to be acquitted. Both the trial court and the High Court overlooked these critical violations, leading to the setting aside of the impugned judgment and the immediate release of the appellant.

In conclusion, the appeal was allowed, the impugned judgment was set aside, and the appellant was directed to be released unless required in any other case. The judgment underscores the significance of strict adherence to procedural safeguards in investigations under the Narcotic Drugs and Psychotropic Substances Act, 1985 to uphold the integrity of the legal process and protect individuals' rights.