[NDPS Act] Before Conducting Search Of Person, Accused Must Be Informed Of Right To Seek Presence Of Magistrate Or Gazetted Officer: Kerala High Court

Section 50 provides that unless in exceptional cases, a person should be searched only in the presence of a Magistrate or a Gazetted Officer. The Court held that it is settled law that a person must be informed of this right before his body search. Only when he is convinced of his right, he can exercise his option to have the presence of a Magistrate or Gazetted Officer to witness his body search. The two accused knew Hindi only. Even though the prosecution claimed that the accused were informed of their rights in Hindi, there was not any evidence to show that. He was searched in the presence of the Assistant Exercise Commissioner, a Gazetted Officer. However, the Court held that since the right was not properly informed to the accused, the formality of Section 50 is not fulfilled.

However, this was not of much consequence as no contraband was seized from the body of the accused. 4. 06 kilograms of hashsish was allegedly recovered from each of their bags. They were both convicted by Additional Sessions Court, Thrissur under the NDPS Act.

The Assistant Excise Commissioner who witnessed the search is the superior officer of the Excise Inspector who seized the contraband and arrested the accused. The investigation was done by The Assistant Excise Commissioner as well. The Court held that it was prejudicial to the accused that the person who witnessed their body search later conducted the investigation.

Furthermore, as per Section 52A of the Act, immediately after the seizure of the contraband, an inventory shall be prepared and forwarded along with the contraband to the Court having jurisdiction. In this case, the contraband was forwarded to the Magistrate on 17/09/2018, immediately after the seizure.

It was contended that the contraband was returned and the Magistrate asked the officer to produce it again the next working day. They produced it before the Magistrate on 19/09/2018. However, how and where the contraband was kept during this time is not explained. There was a delay of two days in producing the contraband before the Magistrate after its return.

Further, it was stated that the inventory was produced before the Court only on 24/09/2018. The Court held that due to all these reasons, the requirements under Section 52A cannot be considered to have been fulfilled properly. The Court observed that the inventory which was produced before the Court did not fulfil all the legal requirements since the inventory is supposed to have details of the nature, quality and quantity of the contraband. The inventory in this case had only stated the quantity of contraband.

Accordingly, the Court held that the prosecution could not prove the case beyond reasonable doubt and the accused were acquitted.

Counsel for Petitioner: Advocates C Dheeraj Rajan, Anand Kalyanakrishnan, Johnson Varikkappallil, P Mohamed Sabah, Saipooja, Libin Stanley

Counsel for Respondents: Public Prosecutor Nima Jacob

Citation: 2024 LiveLaw Ker 362

Case Title: Sipahi Kumar v State of Kerala, Jaymangal Shah v State of Kerala

Case No.: Crl. A. No. 545 of 2021 & Crl A. No. 322 of 2021