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2014 (1) TMI 640 - HC - CustomsOffence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - Rights of the accused - an opportunity to the appellant for holding any search in the presence of a Gazetted officer or a Magistrate - Necessity to comply with Section 50 of the NDPS Act - Quantification of punishment - Held that - appellant was not informed that he had a legal right to the effect that the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. The appellant was only informed that if he so desired he and the bag being carried by him could be searched in the presence of a Magistrate or a Gazetted Officer. This intimation would not amount to conveying to the appellant that he had a legal right to be searched in the presence of a Magistrate or a Gazetted Officer. It is quite possible that had the appellant been informed of such a legal right being available to him he would have chosen to exercise that right instead of allowing the police officers to search him. Since the aforesaid notice Ex.PW1/A does not meet the strict requirement of Section 50 of the Act, the recovery pursuant to the said notice cannot be said to be legal - Decided in favour of assessee.
Issues Involved:
1. Compliance with Section 50 of the NDPS Act. 2. Legality of the notice under Section 50 of the NDPS Act. 3. Validity of the recovery of contraband based on the notice. Issue-wise Detailed Analysis: 1. Compliance with Section 50 of the NDPS Act: The prosecution's case was that the appellant was informed of his right to be searched in the presence of a Gazetted Officer or a Magistrate before the search. However, the appellant contended that the notice did not adequately inform him of his legal right under Section 50 of the NDPS Act. The court examined whether the notice given to the appellant met the requirements of Section 50, which mandates informing the suspect of their right to be searched in the presence of a Gazetted Officer or a Magistrate. 2. Legality of the notice under Section 50 of the NDPS Act: The notice (Ex.PW1/A) given to the appellant stated: "You Rakesh @ Shanker... are informed that the police party has an information that you have ganja with you in a steel trunk or box and you, therefore, are required to be searched. If you so want, some Magistrate or a Gazetted Officer can be called for your search as well as of your box." The court compared this with the notice in the case of State of Delhi versus Ram Avtar @ Rama, where the Supreme Court held that the notice did not specify the provisions of Section 50 and thus did not inform the accused of their right under the law. The court emphasized that the law requires the suspect to be made aware of their right to be searched in the presence of a Gazetted Officer or a Magistrate, and any ambiguity or incomplete information would render the notice non-compliant with Section 50. 3. Validity of the recovery of contraband based on the notice: The court noted that non-compliance with Section 50 of the NDPS Act results in the recovery being illegal. The prosecution argued that the defect in the notice would not render the recovery illegal if no notice under Section 50 was required before searching the trunk. However, the court referred to the case of Gurjant Singh @ Janta versus State of Punjab, where it was held that even if the search was conducted without prior information, compliance with Section 50 was necessary if a notice was given. The court concluded that since the Investigating Officer chose to give a notice under Section 50, it had to conform to the requirements of the Act. The notice given to the appellant did not inform him of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate, thus rendering the recovery illegal. Conclusion: The court held that the notice Ex.PW1/A did not meet the strict requirements of Section 50 of the NDPS Act as it failed to inform the appellant of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. Consequently, the recovery of ganja from the appellant was deemed illegal. The impugned judgment and order on sentence were set aside, and the appellant was acquitted of the charge framed against him. The appellant was ordered to be released from jail unless required to be detained in connection with another case.
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