2015 (9) TMI 764 - HC - Customs

Conviction u/s 20 of the NDPS Act - Non compliance with section 50 of NDPS Act - Held that - A careful examination of the notice would show that an option was given to the appellant that if the appellant so desired the search could be conducted in the presence of a gazetted officer or a Magistrate, however, he had responded by saying that he did not want his search to be carried out in the presence of a gazetted officer or a Magistrate. - In this case, a mere offer was made to the appellant that in case if he so desires, his search may be conducted in presence of a Gazetted Officer or a Magistrate. Thus a mere offer would not satisfy the mandatory ingredients of section 50 of the NDPS Act. In my view the judgment in the case of Ram Avatar (2011 (7) TMI 1105 - supreme court) is fully applicable to the facts of this case, as a similar offer was given to Ram Avtar and the Apex Court held that such an offer did not comply with the mandatory requirement of section 50 of the NDPS Act. Section 50 would be applicable even in those cases where the recovery was made other than from the person of a person. In this case also a notice was given to the appellant. - appellant was not made aware of his right and it seems that an offer was made to the petitioner as a mere empty formality without appreciating the seriousness and letter and spirit of Section 50 of NDPS Act. - Having held that the mandatory requirement of Section 50 of the NDPS Act was not complied with, recovery itself would be illegal and consequent thereto the conviction and the order on sentence are liable to be set aside - Decided in favour of appellant.

Summary

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Legality of the search and seizure.
3. Validity of the conviction and sentence.

Detailed Analysis:

Compliance with Section 50 of the NDPS Act:
The appellant contended that the mandatory requirements of Section 50 of the NDPS Act were not met. The prosecution argued that the appellant was informed of his right to be searched in the presence of a Gazetted Officer or Magistrate, and the appellant declined this offer, as evidenced by his thumb impression on the notice reply. However, the appellant's counsel argued that the thumb impression was taken on a blank piece of paper, and this was suggested to PW-8 during cross-examination.

The court emphasized that Section 50 of the NDPS Act is mandatory and must be strictly applied. The Constitution Bench in Vijaysinh Chandubha Jadeja v. State of Gujarat reiterated that the obligation to inform the suspect of their rights under Section 50 remains even after the amendment of the Act. The court highlighted that offering the option to the suspect must be unambiguous and definite, ensuring the suspect is aware of their statutory safeguards.

The court referred to the case of State of Delhi v. Ram Avtar @ Rama, which held that failure to inform the suspect of their right to be searched in the presence of a Gazetted Officer or Magistrate renders the recovery of contraband illegal. The court further cited Gurjant Singh @ Janta v. State of Punjab, emphasizing the importance of informing the suspect of their rights in clear and unequivocal terms.

Legality of the Search and Seizure:
The court examined the notice issued to the appellant under Section 50 of the NDPS Act and the appellant's reply. It found that the notice merely offered the option of being searched in the presence of a Gazetted Officer or Magistrate, without clearly communicating the appellant's right to such a search. The court noted that various decisions have distinguished between giving an option and clearly informing the suspect of their right.

The court concluded that the notice given to the appellant did not satisfy the mandatory requirements of Section 50 of the NDPS Act. The mere offer to be searched in the presence of a Gazetted Officer or Magistrate was deemed insufficient.

Validity of the Conviction and Sentence:
The trial court had opined that Section 50 of the NDPS Act did not apply since the recovery was made from a bag carried by the appellant, not from his person. However, the High Court disagreed, stating that Section 50 applies even when the recovery is made from a bag or container carried by the suspect.

The court held that the mandatory requirement of Section 50 was not complied with, rendering the recovery illegal. Consequently, the conviction and sentence based on this recovery were deemed invalid. The court allowed the appeal, setting aside the conviction and sentence, and ordered the cancellation of the appellant's bail bonds.

Conclusion:
The High Court found that the mandatory provisions of Section 50 of the NDPS Act were not complied with, leading to the conclusion that the recovery of the contraband was illegal. As a result, the conviction and sentence of the appellant were set aside, and the appeal was allowed.