Courts Cannot Presume Section 50 NDPS Compliance; Prosecution Must Prove It: Supreme Court

On 18 October 1986 two Police Sub-Inspectors in Ahmedabad, acting on information that the first appellant was selling charas, raided the area and recovered 55 grams from him and, as the High Court recorded, 10 grams each from the other two (paras 3-4). The Gujarat High Court upheld their convictions under Section 20 of the NDPS Act, with ten years' rigorous imprisonment and a fine of one lakh rupees, and under the Bombay Prohibition Act (paras 2-3). The officers never testified that they told the appellants of their Section 50 right, but the High Court presumed it as an official act and held that the point could not be raised for the first time in appeal (paras 4-5, 11).

The Court endorsed Balbir Singh: the Section 50 provisions are mandatory and oblige the officer to inform the person to be searched of his right to demand a search before a Gazetted Officer or a Magistrate, a safeguard enacted because Section 54 shifts the onus to the accused and punishments are severe (paras 7-8). So there is no room for a presumption under Section 114, illustration (e) of the Evidence Act that the officer informed the accused (para 9). Possession must be satisfactorily established, and the searching officer's testimony that he informed the person, who did not choose to demand such a search, is very relevant (para 9). If the officer has not deposed that he followed Section 50, the court is duty bound to conclude that possession is not established and to acquit (para 10). The protection is "sacrosanct and cannot be disregarded on the technicality that the point was not taken in the court of first instance" (para 11). Courts need cogent evidence that the accused was made aware of the right; instructions should issue to investigating officers (para 12). As the panchas did not support the officers, the Bombay Prohibition Act convictions also fell (para 14).