12 April 2023 12:16 PM GMT
While acquitting a person who was convicted in 2005 under the NDPS Act, the Uttarakhand High Court said non-compliance of Section 50 of the Act makes sufficient case for acquittal.Justice Alok Kumar Verma said that, “Appellant was not informed of his legal right (to be searched in the presence of the Gazetted Officer or Magistrate), therefore, non-compliance of Section 50 of the...
While acquitting a person who was convicted in 2005 under the NDPS Act, the Uttarakhand High Court said non-compliance of Section 50 of the Act makes sufficient case for acquittal.
Justice Alok Kumar Verma said that,
“Appellant was not informed of his legal right (to be searched in the presence of the Gazetted Officer or Magistrate), therefore, non-compliance of Section 50 of the Act, 1985 makes sufficient case for acquittal.”
The judgement was passed on the appeal against the conviction of the accused in 2005 by Special Sessions Judge, Champawat. The accused had been sentenced to ten years of rigorous imprisonment and a fine of Rs. 1,00,000/- under Sections 18 read with 20 of the NDPS Act for possessing 1 kg of charas.
The accused was not informed of his right to be searched in the presence of a Gazetted Officer or Magistrate by the search officer, as mandated under Section 50 of the Act, the amicus curiae Sandeep Adhikari told the court.
The appellant was apprehended on suspicion while he was coming from Nepal. According to the prosecution, the sub-inspector told him that he had to be searched in the presence of a Magistrate or a Gazetted Officer, and asked whether he wanted to be taken to either of them for the search. The appellant is said to have replied that he had full faith in the sub-inspector. During the search, Charas was recovered from the pajama he was wearing.
The appellant accused in the case did not adduce any defence.
The High Court said that accused was not informed of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. What was informed to him was that as if he desires, he can be searched before the Magistrate or a Gazetted Officer, said the court.
The court said that Section 50 casts duty on empowered officers to inform the suspect of his right to be searched in the presence of the Gazetted Officer or Magistrate.
The Court referred to Vijaysinh Chandubha Jadeja vs. State of Gujrat, (2011) 1 SCC 609 wherein the Supreme Court held that,
“the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub- section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search”.
The Court said that It is well settled that when the law provides for the doing of an act in a particular manner, it necessarily prohibits the doing of that act in any other manner.
In light of the above, the appeal was allowed and the sentence dated 15.12.2005, passed by Special Sessions Judge, Champawat, was set aside.
"Appellant is acquitted of the charge under Section 18 read with Section 20 of the Act, 1985. Appellant-accused is in judicial custody. Appellant shall be released from jail, in case, he is not otherwise required in any other case," it added.
Case Title- Devendra Singh Malik v. State of Uttarakhand
Citation: 2023 LiveLaw (Utt) 6
Counsel for the Appellant- Mr. Sandeep Adhikari, Amicus Curiae
Counsel for the Respondent-Mr. S.T. Bhardwaj, Deputy Advocate General
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