2012 (11) TMI 1073 - SC - Indian Laws

Condition for searching a person Non-Compliance Appellant challenges impugned order of conviction on non-compliance of Section 50 of NDPS Act, 1985 Held that - clear that panchnama that appellants were not apprised about their right to be searched before gazetted officer or Magistrate but consent was sought for their personal search SHO merely asked appellants for their search by him and they simply agreed Mandate of Section 50(1) was mandatory and requires strict compliance, failing to which would render recovery of illicit article suspect and vitiate conviction of same if conviction was recorded only on basis of recovery In view of said rule search and seizure of suspect from appellants was bad and conviction was unsustainable in law Decision of Vijaysinh Chandubha Jadeja vs. State of Gujarat 2010 (10) TMI 934 - SUPREME COURT followed Appeal allowed Decided in favour of appellant.

Issues Involved:
1. Non-compliance with Section 50 of the NDPS Act.
2. Validity of the search and seizure operation.
3. Legality of the conviction based on the evidence obtained.

Detailed Analysis:

1. Non-compliance with Section 50 of the NDPS Act:
The main argument presented by the appellants was the non-compliance with Section 50 of the NDPS Act, which mandates that the suspect must be informed of their right to be searched in the presence of a gazetted officer or a Magistrate. The appellants contended that this right was not adequately communicated to them, which should render the search and subsequent conviction invalid. The prosecution, however, argued that the requirements of Section 50 had been met, as evidenced by the Panchnama.

The Supreme Court examined the Panchnama and found that the appellants were merely asked to give their consent for the search by the police officer, without being informed of their right to be searched before a gazetted officer or a Magistrate. This was deemed insufficient to meet the requirements of Section 50, as interpreted by previous Constitution Bench decisions in *State of Punjab vs. Baldev Singh* and *Vijaysinh Chandubha Jadeja vs. State of Gujarat*. The Court reiterated that strict compliance with Section 50 is mandatory, and failure to inform the suspect of their right renders the recovery of the contraband suspect and vitiates the conviction.

2. Validity of the Search and Seizure Operation:
The Court scrutinized the search and seizure operation and found that the appellants were not properly informed of their rights under Section 50. The Panchnama indicated that the appellants were asked to consent to the search by the police officer without being apprised of their right to be searched before a gazetted officer or a Magistrate. This procedural lapse was significant enough to question the validity of the search and seizure operation.

3. Legality of the Conviction Based on the Evidence Obtained:
Given the non-compliance with Section 50, the Supreme Court held that the search and seizure were invalid. Consequently, the evidence obtained from the appellants during this search was deemed inadmissible. Although a portion of the contraband was recovered from the vehicle, for which Section 50 is not applicable, the remaining quantity would not constitute a 'commercial quantity' sufficient to uphold the conviction and sentence. The Court emphasized that the mandatory requirement of informing the suspect of their right under Section 50 was not a mere formality but a crucial safeguard against misuse of power and wrongful convictions.

Conclusion:
The Supreme Court set aside the conviction and sentence imposed on the appellants by the trial court and confirmed by the High Court due to the non-compliance with Section 50 of the NDPS Act. The appeal was allowed, and the appellants were ordered to be released forthwith, provided they were not required in any other case. The judgment underscores the importance of strict adherence to procedural safeguards in criminal prosecutions under the NDPS Act.

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