Jameela vs State of Kerala and Another

N. Krishnan Nair, J.—This appeal is directed against the order of conviction and sentence passed by the IInd Addl. Sessions Judge, Kollam in S.C. No. 686/2000. The appellant and another were charged with the offence punishable u/s 20(b)(i) of the NDPS Act. After the trial, the learned Addl. Sessions Judge found the accused guilty of the offence and convicted them. The first accused was sentenced to undergo rigorous imprisonment for a period of 21/2 years and to pay a fine of Rs. 2,000/-, in default to undergo simple imprisonment for a period of three months. The second accused was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs. 5,000/-, in default to undergo simple Imprisonment for a period of 45 days. The order of conviction and sentence passed against the second accused is seriously challenged in this appeal.

The prosecution allegation is that on 29-7-1999, the first accused was found in possession of 1 Kg. 850 gms. of ganja while the second accused was found in possession of 950 gms. of ganja on the northern side of the Kollam-Kannanalloor Public Road in front of the Fathima College.

The accused denied the charge. The prosecution examined PWs-1 to 11, marked Exts. P1 to P4 and identified MOs. 1 to 4. On an elaborate consideration of the evidence brought on record, the learned Addl. Sessions Judge found the accused guilty of the offence, convicted them and sentenced them, as stated earlier.

The learned counsel for the petitioner strongly contended that the appellant in this case is entitled to an acquittal since there is non-compliance of the provisions contained in Section 50 of the NDPS Act. He placed much reliance on the decision of the Supreme Court in Beckodan Abdul Rahiman Vs. State of Kerala, .

The only question arising for consideration in this appeal is whether there is non-compliance of the provisions of Section 50 of the NDPS Act. A Constitution Bench of the Supreme Court in State of Punjab Vs. Balbir Singh, has held that while conducting search and seizure in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the Act are also required to be followed. It has also been held by the Supreme Court that the provisions of Section 50 of the NDPS Act are mandatory and non-compliance would render the investigation illegal. In this case, PW-9 claims to have conducted the search and seizure. Admittedly the search was conducted In the presence of PW-4 (Tahsildar) who is a Gazetted Officer. But the accused are not shown to have been appraised of their right nor any option offered to them for the search being conducted in the presence of a Magistrate. The accused was only asked whether he required to be searched in the presence of a Gazetted Officer. No doubt in Marakkar Vs. State of Kerala, , a Division Bench of this Court held that if the accused is informed that he has got a right to be searched either in the presence of a Gazetted Officer or a Magistrate, there is substantial compliance of the Section in the absence of special circumstance to show that there is likelihood of prejudice. The Division Bench agreed with the view expressed by a learned single Judge in Rasheed Vs. State of Kerala, but disagreed with the view in Mani v. State of Kerala (Cri. Appeal No. 127/1999). I am not inclined to follow the Division Bench decision of this Court in view of the decision of the Supreme Court in Beckodan Abdul Rahiman Vs. State of Kerala, . It is gatherable from the decision of the Supreme Court in Beckodan Abdul Rahiman Vs. State of Kerala, , that partial offer seeking option amounts to non-compliance of the provisions of Section 50 of the NDPS Act. It is relevant to note the following observations of the Supreme Court in Abdul Rahiman''s case.

"Similarly the provisions of Section 50 have not been complied with as the accused has not been given any option as to whether he wanted to be searched in the presence of a Gazetted Officer or a Magistrate. The compliance of Section 50 is held to have been fulfilled on his (PW-1) asking the accused "whether I should search him in the presence of Senior Officers or Gazetted Officer. The accused was required to be appraised of his right conferred u/s 50 giving him the option to search being made in presence of Gazetted Officer or the Magistrate. The accused is not shown to have been appraised of his right nor any option offered to him for search being conducted in the presence of the Magistrate."

In this case, there was non-compliance of Section 50 of the NDPS Act inasmuch as no option was offered to the accused for the search being conducted in the presence of a Magistrate. It follows that the appellant is entitled to an acquittal.

In the result, I set aside the order of conviction, and sentence passed against the appellant. He is found not guilty of the offence and he is acquitted.