Right Of Accused U/S 50 Of NDPS Act To Be Searched In Presence Of Magistrate Violated: Gujarat High Court Upholds Order Of Acquittal

The Bench comprising Justice SH Vora and Justice Sandeep Bhatt said,

"IO while acting on prior information and before making search of a person, it is imperative for him to inform the respondent-accused about his right to sub-section (1) of Section 50 of the NDPS Act for being taken to the nearest Gazetted Officer or the Magistrate for making search in their presence. It also appears that neither such procedure is followed..."

The Authorities herein recovered 1 kilogram and 490 grams of charas from the Accused without him having a valid pass or permit. Consequently, a complaint was registered for offences under Section 20, 21 and 22 of the NDPS Act and Section 66(B) and 65(E) of the Prohibition Act.

Pursuant to this, the case was committed to the Sessions Court wherein the Prosecution put forth various incriminating circumstances and witnesses as under Section 313 of CrPC. The Accused denied all accusations. Subsequently, he was acquitted on the ground that the Prosecution had failed to prove the case beyond reasonable doubt.

The Bench observed that the acquittal was made basis the non-compliance of mandatory provisions of NDPS Act on part of the investigating agency. The Sessions Court had also noted that the quantity of the charas was not weighed before the Accused which was an "irregularity". The Court had also cast doubt on the sealing of the cloth bag containing charas. Considering these circumstances, the Accused was acquitted, the Bench noted.

The High Court remarked that it was imperative for the Accused to be informed about his rights under Section 50(1) of the NDPS Act for being taken to the nearest Gazetted Officer or Magistrate for search in their presence. Reference was made to State Of Punjab vs Baldev Singh [1999 (6) SCC 172] wherein it was held:

"The respondent-accused must be made aware of his right for being search to be carried out in presence of a Gazetted Officer or a Magistrate."

Further, on perusal of the deposition of PW9, there was no evidence that Section 50 was complied with. Significantly, no intimation was sent to the Superior Officer nor was any entry made in the station diary about recovery of the muddamal. An additional point noted by the Court was that though 40 grams were recovered, only 28.526 grams were received by the Forensics Lab and no explanation was presented for this anomaly before the Courts. Per the Bench, the stitching of the cloth bag was also doubtful. Hence, the Sessions Court had rightly acquitted the Accused by granting benefit of doubt.

The High Court relied on Ram Kumar v. State of Haryana to aver, "It is settled law that if the main grounds on which the lower Court has based its order acquitting the accused are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal."

Accordingly, the Bench refused to interfere with the order of acquittal and dismissed the appeal.

Case Title: STATE OF GUJARAT Versus UGAMSINH DHANRAJSINH

Case No.: R/CR.A/942/1994

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