Kerala High Court Acquits NDPS Accused Citing Prosecution's Failure To Produce His Alleged Written Consent For Search In Absence Of Magistrate

“…The prosecution further stated that the appellant had given his consent to dispense with the presence of gazetted Officer / Magistrate during search, that also in writing. If such communications in writing existed, the prosecution ought to have produced the same before the court. The non- production of the documents gives rise to serious doubt as regards compliance of law, to an extent that the search and seizure get nullified. In the absence of a search and seizure in compliance with the provisions of Section 50, the entire prosecution story against the appellant would crumble. In the afore facts of the case, I find that failure of the prosecution to produce Section 50 communication / information before the court has seriously prejudiced the appellant and conviction of the appellant cannot be justified under the circumstances.”

Section 50 of the NDPS Act mandates that search has to be conducted in the presence of a Magistrate or a Gazetted officer. Relying upon the landmark Apex Court judgment in Ranjan Kumar Chadha v. State of Himachal Pradesh (2022), the Court stated that when the suspect dispenses his right to be searched before Magistrate or Gazetted officer, written consent letter have to be obtained and search cannot be conducted based on oral statement.

The appellant-sole accused was convicted by the Additional Sessions Judge-VIII, Ernakulam for possession of contraband under 22 (c) of the NDPS Act. He was sentenced to rigorous imprisonment for ten years and to pay a fine of one lakh rupees and a sentence of three months in default of fine.

In appeal, the appellant contended that the search was conducted in violation to Section 50 of the NDPS Act and it was argued that appellant has not written consent letter permitting them to conduct the search in the absence of Magistrate or a Gazetted Officer. It was also argued that the Court below has erred in stating that Section 50 need not be complied with as seizure was made from the handbag and not from the body of the appellant. It was also stated that the appellant was not informed of his right that he can request for the presence of Magistrate or Gazetted Officer.

The Public Prosecutor resisted the appeal and submitted that the appellant was appraised of his right to have the presence of Magistrate or Gazetted Officer for search. It was further argued that the appellant stated that he did not require their presence and had no objection in conducting the search and gave a written consent letter.

The Court found that the police conducted the search and drugs were found in his handbag. The Court found that the police have not produced the details of communication given to the appellant nor the consent letter obtained from him. The Court relied upon the Apex Court decision in State of Punjab v. Baldev Singh (1999) to state that conviction cannot be sustained based on recovery of illicit articles without compliance of Section 50 of the Act. The Court noted that there was nothing on record to prove beyond reasonable doubt that it was the appellant who chose not to exercise his right under Section 50.

The Court stated that society has to be protected from criminals pedelling in narcotic drugs however, it added that the means to achieve convictions is vital. It stated the investigating authorities have to comply with the statutory provisions while carrying out investigations to provide a fair trial to the accused.

“The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations. The Apex Court has held that an accused is entitled to a fair trial and a conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.”

Accordingly, the Court allowed the appeal and set aside the conviction.

Counsel for the petitioner: Advocate Manu Roy

Citation: 2023 LiveLaw (Ker) 643

Case title: Raveendranath V State of Kerala

Case number: CRL.A NO. 1200 OF 2023

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