Non-Compliance Of Section 50 Vitiated Search And Subsequent Conviction: Gauhati High Court Acquits Convict In NDPS Case

The Gauhati High Court on Tuesday set aside the conviction of an accused under NDPS Act on the ground that there was non-compliance of Section 50 of NDPS Act while searching the accused.

The single judge bench of Justice Parthiv Jyoti Saikia observed that recovery of narcotic drugs from a bag carried by a person would attract Section 50 of the NDPS Act, if, in course of such search, the body of the suspect is also searched.

"In the case in hand, there is ample evidence that body search of the appellant was undertaken. Therefore, failure to comply Section 50 of the NDPS Act in course of search, vitiates the seizure and the consequent conviction," said the court. 

On August 29, 2011 at about 9:45 a.m., the appellant and a juvenile accused were searched and 190 grams of brown sugar was allegedly recovered from their possession. The trial court on April 27, 2021 convicted the appellant-accused under Section 20 (b) (ii) (B) of the NDPS Act and sentenced him to undergo imprisonment for 7(seven) years and to pay a fine of Rs.70,000/-

The appellant assailed the impugned judgment and order before the High Court.

The court noted that witnesses PW-1, PW-2 and PW-3 - all Customs Officers, were present at the place of occurrence and supported the prosecution case that narcotic drugs was recovered from the appellant.

"On the other hand, PW-9 (businessman) has stated that the narcotic drugs was actually recovered from the possession of co-accused (juvenile), not from the appellant. Even the witness PW-3 has stated in his evidence that he did not know exactly from whose possession the narcotic drugs was recovered," said the court. 

The court said Section 50 of the NDPS Act lays down that an accused should be made aware of his right to be brought before a Magistrate or a Gazetted Officer prior to a personal search.. The Court relied upon the judgment of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat.

Justice Saikia held that the prosecution evidence, regarding recovery of narcotic drugs from the appellant, fails to inspire confidence and that the noncompliance of Section 50 of the NDPS Act has vitiated the search and subsequent conviction.

Accordingly, the court set aside the impugned judgment and order passed by the trial court and acquitted the appellant.

Case Title: Abdul Hai v. The State of Assam & 2 Ors.

Coram: Justice Parthiv Jyoti Saikia

Click Here to Read/Download Judgment