2002 (9) TMI 872 - HC - Indian Laws

Summary

Issues Involved:
1. Compliance with Section 50 of the NDPS Act regarding the appellant's right to be searched before a Gazetted Officer or Magistrate.
2. Proof of ownership or possession of the house from which contraband was recovered.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:

The appellant was tried for possession of 87.500 gms of brown sugar under Section 21 of the NDPS Act. The first contention was that the appellant was not informed of his right to be searched in the presence of a Gazetted Officer or Magistrate, as mandated by Section 50 of the NDPS Act. The prosecution claimed substantial compliance with Section 50, citing notice (exhibit 55) and depositions of witnesses PW 5 Dr. Sitaram Joshi and PW 6 Wasudeo Sidam. However, the court noted that the notice merely mentioned the provision without clearly informing the appellant of his right. The court referenced the Apex Court's rulings in *State of Punjab v. Balbir Singh* and *State of Punjab v. Baldev Singh*, which emphasized the mandatory nature of Section 50 and the necessity to inform the accused of their right in clear terms. The court found that the notice and witness testimonies did not meet this requirement, rendering the recovery of illicit articles from the appellant's person suspect and vitiating the conviction and sentence based on this recovery.

2. Proof of Ownership or Possession of the House:

The second contention was that the prosecution failed to prove the house from which the remaining brown sugar was recovered belonged to or was occupied by the appellant. The court noted that the prosecution's evidence, including the statements of PW 5 Dr. Sitaram Joshi and PW 6 Wasudeo Sidam, did not establish the appellant's ownership or possession of the house. The court referenced the Apex Court's ruling in *Mohd. Alam Khan v. Narcotics Control Bureau*, which held that the prosecution must establish ownership and possession of the premises from which contraband is seized. In this case, the prosecution did not provide sufficient evidence to prove the appellant's connection to the house. Consequently, the recovery from the house could not be used to sustain the conviction.

Conclusion:

The court concluded that the non-compliance with Section 50 of the NDPS Act and the failure to prove the appellant's ownership or possession of the house from which contraband was recovered rendered the conviction and sentence unsustainable. The court allowed the appeal, quashing and setting aside the conviction and sentence, and ordered the appellant's acquittal.