1994 (9) TMI 341 - SC - Companies Law

Whether question of giving option to the accused in compliance with Section 50 of the Act is subject to the condition that the accused requires that he be searched in the presence of a Gazetted Officer or a Magistrate but where the accused does not so require for whatever reason his conviction would not stand vitiated, in case the option was not given to him? Held that - The words if the person to be searched so desires are important. One of the submissions whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate and thereafter the search would be conducted in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised makes it obligatory on the authorised officer to inform the person to be searched of his right. n view of the law laid down in Balbir Singh case 1994 (3) TMI 173 - SUPREME COURT OF INDIA there has been violation of the provisions of Section 50 of NDPS Act and consequently the conviction of the appellant cannot be sustained. We, therefore, allow this appeal and set aside the conviction and sentence of the appellant

Summary

Issues:
1. Non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Validity of the search and seizure of contraband.
3. Use of seized contraband as evidence for unlawful possession.

Detailed Analysis:

1. The appellant, a Kuwaiti national, was convicted under Section 20(b)(ii) of the NDPS Act and sentenced to 11 years imprisonment and a fine of Rs 1 lakh. The High Court upheld the conviction but reduced the sentence to 10 years. The issue arose regarding the non-compliance with the provisions of Section 50 of the NDPS Act, which the appellant argued rendered the conviction unsustainable. The Supreme Court held that the failure to provide the accused with the option of being searched in the presence of a Gazetted Officer or a Magistrate, as mandated by Section 50, vitiates the conviction. Citing the State of Punjab v. Balbir Singh case, the Court emphasized the mandatory nature of Section 50 and ruled in favor of the appellant.

2. The prosecution's case involved the appellant being found in possession of charas at a railway station. The search and seizure of the contraband were conducted without offering the appellant the option of being searched in the presence of a Gazetted Officer or a Magistrate, as required by Section 50. The Court highlighted that the accused must be informed of this right, and failure to do so undermines the authenticity and creditworthiness of the proceedings. The Court rejected the argument that the accused must explicitly request such presence, affirming that it is the duty of the authorized officer to inform the person to be searched of this right.

3. The respondents argued that even if the search and seizure were illegal under Section 50, the seized contraband could still be used as evidence of unlawful possession. However, the Court disagreed, stating that unlawful possession is a crucial element for conviction under the NDPS Act. The judgment in Pooran Mal v. Director of Inspection was cited to clarify that evidence obtained from an illegal search or seizure can be used in certain proceedings but does not automatically establish unlawful possession. Therefore, in the absence of proof of possession beyond a reasonable doubt, the accused cannot be convicted under the NDPS Act. Consequently, the Court set aside the conviction and directed the appellant's release due to the violation of Section 50 of the NDPS Act.