2020 (2) TMI 218 - HC - Indian Laws

Smuggling - Cocaine - whether the appellant s search conducted by police officials which yielded 25 grams of cocaine was not compliant with the provisions of Section 50 of the NDPS Act, as it was not conducted in the presence of Gazetted Officer/Magistrate? HELD THAT - The mandate of Section 50(1) of the NDPS Act is to ensure that the authorized officer informs the person proposed to be searched about his right to be searched before a Magistrate or a Gazetted Officer. The authorized officer is also obliged to take the concerned person (the suspect) to the nearest Gazetted Officer of any departments mentioned in Section 42 of the NDPS Act or to the nearest Magistrate, if such person so requires - it is no longer res integra that it is mandatory to comply with Section 50 of the NDPS Act. There is also no ambiguity as to manner in which Section 50 of the NDPC Act is required to be complied. Plainly, there is no requirement to conduct the search in the presence of a Magistrate or Gazetted Officer, if the person proposed to be searched did not so desire, after being informed of his right in this regard. The words if such person so requires as used in Section 50(1) of the NDPS Act make it amply clear that the person to be searched would be taken before a Magistrate or a Gazetted Officer, only if he so requires. In terms of Sub-section (2) of Section 50 of the NDPS Act, the Authorised Officer is empowered to detain the person proposed to be searched until he can bring him before the Gazetted Officer/Magistrate, as referred to in Sub-section (1) of Section 50 of the NDPS Act. The words such requisition , as mentioned in the opening sentence of Subsection (2) of Section 50 of the NDPS Act, obviously refers to the person proposed to be searched electing to exercise his right to be searched before a Gazetted Officer / Magistrate. Sub-section (5) of Section 50 of the NDPS Act were met, that is, if it is not possible to take the person to be searched to the nearest Gazetted Officer/Magistrate without the possibility of the person being searched parting with the possession of any narcotic drugs, psychotropic substance or any controlled substance or article or document. In terms of Sub-section (6) of Section 50 of the NDPS Act, the authorised officer is also required to record reasons for his belief that necessitated him to search the suspect without taking him to the nearest Gazetted Officer or Magistrate. Such reasons are required to be recorded within seventytwo hours of the search being conducted and a copy of the same is required to be sent by the authorised officer to his immediate official superior. Given the scheme of Section 50 of the NDPS Act, it is difficult to accept that it is mandatory to search a suspect before a Magistrate/ Gazetted Officer, notwithstanding that the suspect does not so require, after he is apprised of his rights in this regard. The prosecution has established that the appellant was apprised of his right to be searched before a Magistrate or a Gazetted officer but he did not require that his search be conducted before the said persons - Appeal dismissed.

Summary

Issues Involved:
1. Compliance with Section 50 of the NDPS Act regarding the search of the appellant.
2. Inclusion of public witnesses during the search and seizure.
3. Inconsistencies in witness testimonies.
4. Appellant's conviction under Section 14(a) of the Foreigners Act, 1946.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The principal controversy in this appeal was whether the appellant’s search, which yielded 25 grams of cocaine, complied with Section 50 of the NDPS Act. The appellant contended that the search was not conducted in the presence of a Gazetted Officer or Magistrate, as required by Section 50. The court examined the notice served under Section 50, which informed the appellant of his right to be searched before a Magistrate or a Gazetted Officer. The court found that the use of the word "can" instead of "shall" in the notice did not render it defective, as the appellant was duly informed of his legal right. The court concluded that the provisions of Section 50 were complied with since the appellant was informed of his right and declined the offer to be searched before a Gazetted Officer or Magistrate.

2. Inclusion of Public Witnesses:
The appellant argued that no public witnesses were included in the search and seizure proceedings, raising doubts about the prosecution's case. The court acknowledged that the raiding team had sufficient time to ensure the inclusion of independent witnesses, given the crowded location. However, the court held that the absence of public witnesses did not necessarily discredit the testimonies of the police officers involved in the raid. The testimonies of the raiding team members were consistent regarding the recovery of cocaine from the appellant, and the samples drawn were not tampered with.

3. Inconsistencies in Witness Testimonies:
The appellant pointed out inconsistencies in the testimonies of various witnesses. Specifically, there were discrepancies regarding which pocket the cocaine was recovered from and whether a mobile phone was found on the appellant. The court found that while there were inconsistencies regarding the recovery of a mobile phone, these did not raise sufficient doubt about the possession of the contraband. The court clarified that the testimonies regarding the recovery of cocaine were consistent and credible.

4. Appellant's Conviction under Section 14(a) of the Foreigners Act, 1946:
The appellant did not contest his conviction under Section 14(a) of the Foreigners Act, 1946, for overstaying his visa. The court noted that the appellant had already served the sentence for this offence and limited the appeal to the conviction under Section 21(b) of the NDPS Act.

Discussion and Conclusion:
The court concluded that the inconsistencies in witness testimonies did not warrant the appellant's acquittal. The court emphasized the importance of compliance with Section 50 of the NDPS Act and found that the appellant was duly informed of his right to be searched before a Gazetted Officer or Magistrate. The court held that the absence of public witnesses did not invalidate the search and seizure proceedings. The appeal was dismissed, and the appellant's conviction under Section 21(b) of the NDPS Act was upheld.