1999 JTR(SC) 1265
2000 10 SCC 222 ; 2000 SCC(Cri) 1228 ; 2000 KHC 1603 ; 1999 3 KLT(Online) 1120
SUPREME COURT OF INDIA
D.P.Mohapatra : K.T.Thomas
K.Mohanan
Versus
State Of Kerala
Case No. : 967 of 1998
Date of Decision : 10/27/99
Compliance with Section 50 of the NDPS Act requires informing the accused of their legal right to be searched before a Gazetted Officer or Magistrate; merely asking if they desire such a search is insufficient and renders the search evidence inadmissible.
Act
Referred
:NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT
: S.50
(A) Narcotic Drugs and Psychotropic Substances Act - Section 50 - Search of person - Mandatory requirement to inform the person of their right to be searched before a Gazetted Officer or Magistrate - Merely asking the accused if they require to be produced before such authorities is not equivalent to communicating that they have a legal right to be searched so - Failure to inform the person concerned about the existence of this right causes prejudice to the accused and renders the evidence of search inadmissible in the absence of other independent evidence. (Paras 4, 5, 6 and 7)
(B) Narcotic Drugs and Psychotropic Substances Act - Section 31 - Enhanced sentence for previous conviction - Previous conviction must be valid and subsisting - If the previous conviction has been set aside by a higher court, the provisions for enhanced sentence under Section 31 are inapplicable. (Para 8)
Facts of the case:
An individual was intercepted and searched, resulting in the recovery of a packet containing brown sugar weighing 4150 mg. The individual was convicted under Section 21 and Section 31 of the Act. The trial court awarded a sentence of 16 years rigorous imprisonment and a fine, which was subsequently reduced by the High Court to 10 years and six months rigorous imprisonment and a fine of Rs 1 lakh.
Findings of Court:
The court found that the mandatory requirements of Section 50 were not met because the officer only sought the opinion of the accused regarding whether he wanted to be searched before a Gazetted Officer or Magistrate, rather than informing him of his legal right to do so. Additionally, the previous conviction used to invoke Section 31 had been set aside by the Supreme Court in a prior appeal.
Issues: Whether the mandatory requirements of Section 50 of the Act were complied with during the search and whether the conviction under Section 31 was sustainable given the status of the previous conviction.
Ratio Decidendi: Informing an accused of their right to be searched before a Gazetted Officer or Magistrate is a mandatory legal requirement; simply asking if they wish to be so searched does not satisfy this obligation. Furthermore, a previous conviction that has been set aside cannot be used as a basis for enhancing a sentence under Section 31.
Result: Appeal allowed and set aside the conviction and sentence and acquit him.
(B) Narcotic Drugs and Psychotropic Substances Act - Section 31 - Enhanced sentence for previous conviction - Previous conviction must be valid and subsisting - If the previous conviction has been set aside by a higher court, the provisions for enhanced sentence under Section 31 are inapplicable. (Para 8)
Facts of the case:
An individual was intercepted and searched, resulting in the recovery of a packet containing brown sugar weighing 4150 mg. The individual was convicted under Section 21 and Section 31 of the Act. The trial court awarded a sentence of 16 years rigorous imprisonment and a fine, which was subsequently reduced by the High Court to 10 years and six months rigorous imprisonment and a fine of Rs 1 lakh.
Findings of Court:
The court found that the mandatory requirements of Section 50 were not met because the officer only sought the opinion of the accused regarding whether he wanted to be searched before a Gazetted Officer or Magistrate, rather than informing him of his legal right to do so. Additionally, the previous conviction used to invoke Section 31 had been set aside by the Supreme Court in a prior appeal.
Issues: Whether the mandatory requirements of Section 50 of the Act were complied with during the search and whether the conviction under Section 31 was sustainable given the status of the previous conviction.
Ratio Decidendi: Informing an accused of their right to be searched before a Gazetted Officer or Magistrate is a mandatory legal requirement; simply asking if they wish to be so searched does not satisfy this obligation. Furthermore, a previous conviction that has been set aside cannot be used as a basis for enhancing a sentence under Section 31.
Result: Appeal allowed and set aside the conviction and sentence and acquit him.
Procedure - This entry appears to be a placeholder or general reference in the referred case list, and is included as per the provided data.
Search - The Constitution Bench decision is relied upon for the proposition that it is imperative for an empowered officer to inform the accused of their right to be searched before a gazetted officer or Magistrate under Section 50 of the NDPS Act.
Compliance - The case established that an empowered officer must inform the person being searched of their right under Section 50 of the NDPS Act to be taken to a gazetted officer or Magistrate.
(1) IN this case the appellant stands convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short "the Act"). He was also convicted under Section 31 of the Act on the premise that he had a previous conviction of an offence under the Act. Therefore, the trial court awarded enhanced sentence of rigorous imprisonment for 16 years and a fine of Rs 2 lakhs. Though the High Court confirmed the conviction under both counts the Division Bench of the High Court reduced the sentence of rigorous imprisonment to 10 years and six months and a fine of Rs 1 lakh.
(2) AS we examined Section 31 of the Act we felt that the Court has no jurisdiction to reduce the sentence below a period of 15 years so far as the jail term is concerned. Accordingly, we issued a notice to the appellant as to why the sentence shall not be raised to the aforesaid minimum in case we choose to confirm the conviction under Section 31 of the Act.
(3) NOW, we heard the arguments on merits. The case against him, in short, is that PW 1 Sub-Inspector of Police, District Crime Investigation Bureau (Calicut City) intercepted the appellant at 4.15 p.m. on 24-9-1990 and conducted a search on his person and recovered a packet from the folder of his loincloth. That packet contained four small packets of brown sugar, total of which weighed 4150 mg.
(4) THE main legal point canvassed before us is that the mandatory requirement in Section 50 of the Act has not been complied with. It is recited in the judgment that PW 1, before the search was conducted, asked the appellant whether he required to be produced before a gazetted officer or a Magistrate for the purpose of search and that the appellant answered in the negative. In order to ascertain whether the said recital is authentic, we called for the original records. Though the evidence is recorded in vernacular we found from the testimony of PW 1 that the aforesaid recital is substantially correct.
(5) THE Constitution Bench of this Court in State of Punjab v. Baldev Singh has considered various aspects of the compliance with Section 50 of the Act. The Bench has laid down the propositions of law of which the first and second are extracted below:
"57. (7) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused."
(6) IF the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a gazetted officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW 1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with.
(7) WE, therefore, hold that there was non-compliance with Section 50 of the Act and consequently the evidence of search spoken to by PW 1 cannot be acted upon in the absence of any other independent evidence to show that the appellant was in possession of the contraband article.
(8) IN the aforesaid view it is unnecessary for us to consider whether conviction under Section 31 of the Act need be sustained. Nevertheless, we may point out that Section 31 was invoked by the trial court on the strength of the conviction imposed on the appellant in Sessions Case No. 21 of 1989 of the same trial court though the said conviction has been confirmed by the High Court. We may point out that this Court has interfered with the said conviction and sentence and set them aside in Criminal Appeal No. 710 of 1994 as per order dated 4-9-1995. So, even apart from our finding on the merits of the case in the present incident we are of the view that Section 31 is inapplicable as against the appellant in this case.
(9) IN the result we allow this appeal and set aside the conviction and sentence and acquit him. We direct him to be set at liberty forthwith unless he is required in any other case.