1994 JTR(SC) 964
1995 AIR(SC) 244 ; 1994 AIR(SCW) 4393 ; 1995 1 BLJR 27 ; 1994 CriLR 717 ; 1995 CriLR(Cal) 1 ; 1994 3 Crimes(SC) 456 ; 1994 6 JT 326 ; 1995 1 MWN(Cri) 254 ; 1994 3 RCR(Cri) 595 ; 1994 4 Scale 328 ; 1995 Supp4 SCC 244 ; 1995 SCC(Cri) 32 ; 1994 Supp4 SCR 52 ; 1995 1 UJ 85
SUPREME COURT OF INDIA
Dr. A.S. ANAND AND FAIZAN-UDDIN, JJ.
Ali Mustaffa Abdul Rahman Moosa, Appellant
Versus
State of Kerala, Respondent.
Criminal Appeal No. 348 of 1991
Decided on 28-9-1994.
Advocates appeared
Mr. R. N. Joshi, Advocate for, Mr. Harjinder Singh, Advocate, for Appellant; Mr. G. Vishwanatha Iyer, Sr. Advocate and M. T. George, Advocate with him, for Respondents.
* Cri A. No. 414 of 1989, Dated 10-4-1990 (Kerala).
Act
Referred
:CIVIL PROCEDURE CODE : S.9, S.4, S.107, O.6 R.17
COMPANIES ACT : S.73, S.621, S.621(a)
CRIMINAL PROCEDURE CODE : S.165, S.100, S.482
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.50
(A) The Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50, read with the Code of Criminal Procedure, 1973, Sections 9, 107, 165, and Order VI Rule 17, and Section 482, along with the Companies Act, 1956, Sections 73 and 621, govern the procedure for search, seizure, and trial in offences related to contraband. The present case hinges on compliance with the mandatory procedural requirement under Section 50 of the NDPS Act, which demands that an authorised officer must inform a person subjected to search of their right to be searched in the presence of a gazetted officer or a Magistrate if so desired. Non-compliance with this mandatory provision vitiates the conviction, as the validity of the seizure and the resulting evidence of possession are directly impacted by the failure to provide such an option. The impugned conviction is therefore tested against the backdrop of these procedural safeguards aimed at protecting individual rights during investigation.
(B) Key legal principles include that Section 50 of the NDPS Act is mandatory and non-compliance vitiates conviction; evidence obtained from an illegal search may not establish unlawful possession; and the accused must be informed of the right to demand a search in the presence of a gazetted officer or Magistrate. The court also reaffirmed that the seized contraband, while relevant, cannot substitute for proof of possession required for conviction.
Facts of the case:
The appellant, a foreign national, was found in possession of approximately 780 grams of charas at a railway station waiting room. The search was conducted based on a tip-off, but the appellant was not given an option to be searched in the presence of a gazetted officer or a Magistrate as required by law. The seizure was effected, and the substance was identified as charas. The appellant denied possession, claiming the bag was abandoned. The trial and high court convicted the appellant, imposing imprisonment and a fine.
Findings of Court:
The court found that the failure to inform the appellant of the right under Section 50 and to offer the option for a search in the presence of a gazetted officer or Magistrate constituted a violation of the mandatory procedural provisions. This defect undermined the legality of the seizure and, consequently, the conviction.
Issues:
Whether non-compliance with Section 50 of the NDPS Act vitiates the conviction for offences under the Act, and whether the seized contraband can be used to establish unlawful possession in the absence of proof of knowledge and control.
Ratio Decidendi:
The Court held that Section 50 of the NDPS Act is mandatory, and non-compliance by not offering the accused the option to be searched in the presence of a gazetted officer or a Magistrate renders the conviction unsustainable, as the foundational procedural safeguard was denied.
Result:
The appeal is allowed, the conviction and sentence are set aside, and the appellant is directed to be released unless required for any other case.
(A) The Narcotic Drugs and Psychotropic Substances Act, 1985, Section 50, read with the Code of Criminal Procedure, 1973, Sections 9, 107, 165, and Order VI Rule 17, and Section 482, along with the Companies Act, 1956, Sections 73 and 621, govern the procedure for search, seizure, and trial in offences related to contraband. The present case hinges on compliance with the mandatory procedural requirement under Section 50 of the NDPS Act, which demands that an authorised officer must inform a person subjected to search of their right to be searched in the presence of a gazetted officer or a Magistrate if so desired. Non-compliance with this mandatory provision vitiates the conviction, as the validity of the seizure and the resulting evidence of possession are directly impacted by the failure to provide such an option. The impugned conviction is therefore tested against the backdrop of these procedural safeguards aimed at protecting individual rights during investigation.
(B) Key legal principles include that Section 50 of the NDPS Act is mandatory and non-compliance vitiates conviction; evidence obtained from an illegal search may not establish unlawful possession; and the accused must be informed of the right to demand a search in the presence of a gazetted officer or Magistrate. The court also reaffirmed that the seized contraband, while relevant, cannot substitute for proof of possession required for conviction.
Facts of the case:
The appellant, a foreign national, was found in possession of approximately 780 grams of charas at a railway station waiting room. The search was conducted based on a tip-off, but the appellant was not given an option to be searched in the presence of a gazetted officer or a Magistrate as required by law. The seizure was effected, and the substance was identified as charas. The appellant denied possession, claiming the bag was abandoned. The trial and high court convicted the appellant, imposing imprisonment and a fine.
Findings of Court:
The court found that the failure to inform the appellant of the right under Section 50 and to offer the option for a search in the presence of a gazetted officer or Magistrate constituted a violation of the mandatory procedural provisions. This defect undermined the legality of the seizure and, consequently, the conviction.
Issues:
Whether non-compliance with Section 50 of the NDPS Act vitiates the conviction for offences under the Act, and whether the seized contraband can be used to establish unlawful possession in the absence of proof of knowledge and control.
Ratio Decidendi:
The Court held that Section 50 of the NDPS Act is mandatory, and non-compliance by not offering the accused the option to be searched in the presence of a gazetted officer or a Magistrate renders the conviction unsustainable, as the foundational procedural safeguard was denied.
Result:
The appeal is allowed, the conviction and sentence are set aside, and the appellant is directed to be released unless required for any other case.
G.VISHVANATHA IYER, Harjinder Singh, M.T.George, R.N.JOSHI
JUDGMENT
Dr. ANAND, J.:-The appellant, a Kuwaiti national, was convicted for an offence under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter the NDPS Act) and sentenced to suffer imprisonment for 11 years and a fine of Rs. 1 lac by the learned Sessions Judge, Quilon. His appeal against the conviction failed before the High Court of Kerala though the sentence of imprisonment was reduced to 10 years RI. The imposition of fine of Rs 1 lac as also the imprisonment in default of the payment of fine as imposed by the trial Court was, however, maintained.
2. Accordingly to the prosecution case, on 12-10-1988 at about 11.15 p.m., the appellant was found in possession of 780 gms. of charas in the first class waiting room of the railway station at Quilion. PW6, Ashok Kumar, Sub-Inspector of Police attached to the Quilon railway station, on receipt of reliable information that a foreigner having charas in his possession was sitting at the Quilion railway station, went to the platform where PW 1 Constable Nataraja Pillai was on patrol duty. Both PW1 and PW6 went to the first class waiting room. The appellant was found sitting there with a bag. On suspicion, he was questioned by PW1 and PW6. The appellant took out a small packet of charas from his bag and handed it over to PW6. On further questioning and search, PW6 recovered three big packets of charas from the bag which was in possession of the appellant. The seizure of charas was effected in presence of the witness on the spot itself and the contraband was taken into possession after making the mahazar. The other valuable articles which were with the appellant were also taken into custody, after preparing the recovery memo. The contraband was weighed and in the presence of witnesses, a small portion from each of the four packets of contraband, was taken as sample for examination. The search and seizure lasted till about 5.00 a.m. on 13-10-1988. The appellant was arrested on the spot and produced at the police station adjacent to the railway station. The seized articles were kept in safe custody of the police station and the appellant was produced before the Magistrate, after the registration of the case. After further investigation, the charge-sheet was filed before the Chief Judicial Magistrate, Quilon who committed the case to the Sessions Court for trial.
3. Six witnesses were examined by the prosecution and various articles as recovered from the possession of the appellant were exhibited as material objects. The contraband was found by the expert to be "charas". The appellant in his statement under Section 313, Cr. P. C. denied the seizure and disowned the bag from which the contraband had been recovered and seized and asserted that it was an abandoned bag and that the appellant had been unnecessarily linked up with the seizure of the contraband on misguided suspicion.
4. Though a number of submissions were made by learned counsel for the appellant, we need not detain ourselves to deal with all those submissions as in our opinion there is force in the main argument of the learned counsel for the appellant viz. that on account of the non-compliance with the provisions of Section 50 of the NDPS Act, which provisions have been held to be mandatory by this Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 : (1994 AIR SCW 1802), the conviction and sentence of the appellant cannot be sustained.
5. From the testimony of PW6, it is apparent that before reaching the first class waiting room at the railway station, he had received information that a foreigner was sitting with charas at the railway station. The appellant was thereafter spotted and subjected to search and from his possession allegedly 780 grms of charas was seized. Undoubtedly, before the search of the appellant was made, he was not given any option as to whether he desired to be searched in the presence of a gazetted officer or a Magistrate as envisaged by Section 50. In State of Punjab v. Balbir Singh (1994 AIR SCW 1802) (supra) it has been held that before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a gazetted officer or a Magistrate. It was also held that Section 50 confers a valuable right on the person to be searched in the presence of a gazetted officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction.The Court expressly held the provisions of Section 50 to be mandatory, the non-compliance whereof would vitiate the conviction.
6. Learned counsel for the respondents on the other hand submitted that the question of giving option to the accused in compliance with Section 50 of the Act is subject to the condition that the accused "requires" that he be searched in the presence of a gazetted officer or a Magistrate but where the accused does not so require for whatever reason his conviction would not stand vitiated, in case the option was not given to him. A similar argument had been advanced in Balbir Singhs case (1994 AIR SCW 1802) (supra) and the Bench repelled the same after a detailed discussion and observed (at pp. 1819-20 of AIR):
"The words "if the person to be searched so desires" are important. One of the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a magistrate and thereafter the search should be conducted, in the context in which this right has been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires, since such a search would impart much more authenticity and creditworthiness to the proceedings while equally providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the authorised officer to inform the person to be searched of his right. (Emphasis supplied)
7. We respectfully agree with the above observations and reject the submission made on behalf of the respondents.
8. Learned counsel for the respondents then submitted that the judgment in Balbir Singhs case (1994 AIR SCW 1802) (supra) requires reconsideration. We cannot agree. There are no compelling reasons advanced by the learned counsel for the respondents for the reconsideration of the judgment in Balbir Singhs case (supra).
9. The last submission of the learned counsel for the respondents is that even if the search and seizure of the contraband are held to be illegal and contrary to the provisions of Section 50 of the NDPS Act, it would still not affect the conviction because the seized articles could be used as "evidence" of unlawful possession of a contraband. Reliance for this submission is placed on the judgment of this Court in Pooran Mal v. Director of Inspection, (1974) 1 SCC 345: (AIR 1974 SC 348). We are afraid the submission is misconceived and the reliance placed on the said judgment is misplaced. The judgment in Pooran Mals case (supra) only lays down that the evidence collected as a result of illegal search or seizure, could be used as evidence in proceedings against that party under the Income-tax Act. That judgment cannot be interpreted to lay down that a contraband seized as a result of illegal search or seizure, can be used to fasten the liability of unlawful possession of the contraband on the person from whom the contraband had allegedly been seized in an illegal manner. "Unlawful possession" of the contraband is the sine qua non for conviction under the NDPS Act and that factor has to be established by the prosecution beyond a reasonable doubt. Indeed the seized contraband is evidence but in the absence of proof of possession of the same, an accused cannot be held guilty under the NDPS Act.
10. In view of the law laid down in Balbir Singhs case (1994 AIR SCW 1802) (supra), we hold that there has been violation of the provisions of Section 50 of the NDPS Act and consequently the conviction of the appellant cannot be sustained. We, therefore, allow this appeal and set aside the conviction and sentence of the appellant. He is directed to be released forthwith unless required in any other case.
Appeal allowed.
For Citation: AIR 1995 SC 244