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Judgment Intelligence
Conviction Set AsideLadulal v. State of Rajasthan
S.B. Criminal Appeal No. 520/1999 connected with S.B. Criminal Appeal No. 606/1999
- Court
- Rajasthan High Court
- Date of Decision
- 4 January 2020
- Bench
- Justice Sandeep Mehta
- Relevant Acts & Sections
- Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 8, 18, 50, 52A; Code of Criminal Procedure, 1973 — Sections 374(2), 437-A
Final Outcome
Both appeals allowed; the judgment of 13.08.1999 was quashed and the appellant acquitted of the charge under Section 8/18; being on bail, his bail bonds were discharged, subject to a Section 437-A bond for six months (paras 11-12).
Key holdings
- Contraband found in the pocket of a shirt the accused is wearing is recovered in a personal search, attracting Section 50 (para 7).
- The accused must be apprised of the existence of his right; casually conveying that he could be searched before a Gazetted Officer or Magistrate is not compliance (paras 7-8).
- Non-compliance with Section 50 vitiates the seizure made in the personal search (para 8).
- Where neither the contraband nor the sample is exhibited and no inventory exists, the seizure itself is not proved (para 9).
Case explainer by NyayVidhan: an account of this judgment and the law it laid down, not the court's text. The judgment itself is the authoritative version.
Brief Facts
On 08.07.1998 the SHO of Police Station Asind, Bhilwara apprehended the appellant, allegedly carrying opium. Before the personal search he gave a written notice under Section 50 and, after the appellant allegedly agreed to be searched by the SHO himself, recovered 250 grams of opium from his shirt pocket, drawing a 50-gram sample (para 3). The Special Judge, NDPS Act Cases, Bhilwara convicted him under Section 8/18 and imposed ten years' rigorous imprisonment and a Rs 1,00,000 fine (para 1). His regular appeal and jail appeal were heard together (para 2).
Court's Findings
As the opium was found in the shirt the appellant wore, the search was a personal search, and Section 50 obliged the officer to apprise him of the existence of his right to be searched before a Gazetted Officer or a Magistrate; following the Constitution Bench in Baldev Singh, the provision must be strictly complied with (para 7). The notice and the officer's evidence showed that "the IO casually conveyed the accused that he could be searched before a Gazetted Officer or a Magistrate", with no attempt to apprise him of the right itself (para 7). Relying on Arif Khan, the Court held the notice non-compliant and the seizure vitiated (paras 7-8). Separately, the prosecution must prove that the seizure was actually made, by exhibiting the contraband and sample in evidence or by proving a Section 52A inventory. Section 52A did not exist in 1998, and neither the contraband nor the sample returned from the FSL was exhibited, so the seizure was not satisfactorily proved (para 9).
Legal Principle
Section 50 of the NDPS Act requires the officer to apprise the person of the existence of his right to be searched before a Gazetted Officer or a Magistrate; casually conveying that such a search is possible does not comply. The prosecution must also prove the seizure by exhibiting the contraband or sample (paras 7-9).
Precedents Relied Upon
- Arif Khan @ Agha Khan v. State of Uttarakhand AIR 2018 SC 2013
Section 50 of the NDPS Act is mandatory and must be strictly complied with: the officer must make the suspect aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate.
- State of Punjab v. Baldev Singh (1999) 6 SCC 172
Section 50 of the NDPS Act has to be complied with strictly (Constitution Bench).
