2012 (4) TMI 663 - SC - Customs

Whether evidence adduced in this case establishes that there was strict compliance of Section 50(1) of the NDPS Act?

Summary

Issues Involved:
1. Violation of procedure under Section 50 of the NDPS Act.
2. Compliance with procedural safeguards during search and seizure.
3. Impact of non-compliance on the conviction and sentence.

Detailed Analysis:

Violation of Procedure under Section 50 of the NDPS Act:
The primary issue in this appeal is whether there was a violation of Section 50 of the NDPS Act during the search and seizure process. Section 50 mandates that the suspect must be informed of their right to be searched in the presence of a gazetted officer or a Magistrate. The appellant contends that this procedural safeguard was not followed, which should render the recovery of the illicit article suspect and vitiate the conviction.

Compliance with Procedural Safeguards During Search and Seizure:
The prosecution's case is based on the testimony of police officers who conducted the search and seizure. PW-1 and PW-2 testified that the appellant and co-accused were informed of their right to be searched in the presence of another gazetted officer, which they declined. However, the testimonies did not clearly communicate that the suspects were informed of their right to be searched before a Magistrate or a gazetted officer as required by Section 50(1) of the NDPS Act. PW-3's testimony further complicates the issue by suggesting that the accused voluntarily produced the Ganja packets, which contradicts the testimonies of PW-1 and PW-2.

Impact of Non-Compliance on the Conviction and Sentence:
The judgment references the Constitution Bench decisions in *State of Punjab v. Baldev Singh* and *Vijaysingh Chandubha Jadeja v. State of Gujarat*, which emphasize the mandatory nature of compliance with Section 50(1) of the NDPS Act. The failure to inform the suspect of their right to be searched before a gazetted officer or a Magistrate renders the recovery of the illicit article suspect and vitiates the conviction and sentence. The court found that there was a breach of Section 50(1) in this case, as the procedural safeguard was not strictly followed. Consequently, the conviction based solely on the possession of Ganja recovered from the appellant was set aside.

Conclusion:
The Supreme Court concluded that the procedural breach under Section 50(1) of the NDPS Act necessitates the setting aside of the conviction and sentence of the appellant. The court also extended this benefit to the co-accused (A1 and A2), who had not appealed, following the precedent set in *Ashok @ Dangra Jaiswal v. State of Madhya Pradesh*. Thus, the impugned judgment convicting and sentencing the appellant and co-accused was quashed and set aside, and they were acquitted of the charges under Section 8(c) read with Section 20(b)(i) of the NDPS Act.