[NDPS Act] Failure To Comply With Section 50 During Course Of Search Vitiates Seizure & Consequent Conviction: Gauhati HC

The Gauhati High Court recently held that when a Narcotic Drug is searched from the body of the person, then the authorized officer must mandatorily comply with sub-section (1) of Section 50 of the NDPS Act, and failure to do so would vitiate the proceedings.

While setting aside the conviction against the Appellant and relying on the decision of Apex Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat [(2011) 1 SCC 609], a Single Judge Bench of Justice Parthiv Jyoti Saika observed that “in case of recovery of narcotic drug and in the course of search, Section 50 of the NDPS Act should have been complied with and the suspect should have been made aware of his rights to be present before the Magistrate in case of a body search, otherwise it vitiates the seizure and consequent conviction”.

Advocate A. Ahmed appeared for the Appellant, whereas, APP B. Sarma appeared for the Respondent.

In brief facts, the Appellant challenged the order of conviction passed by the Trial Court under Section 20(b)(ii)(B) of the NDPS Act wherein he was sentenced to undergo imprisonment for seven years along with a fine of Rs.70 thousand. This conviction was based on the recovery of 190 grams of brown sugar from the possession of the Appellant during a course of search. Since the other accused person was a juvenile, his case was referred to the appropriate authority.

After perusing the statements on record submitted before the Trial Court and going through the evidence, the Bench formed two primary issues, namely, to the recovery of drugs from the possession of the Appellant and the application of Section 50 of the NDPS Act.

The Bench compared the statements of some prosecution witnesses who stated that they were present at the place of occurrence and the drug was recovered from the Appellant, whereas, the statement of another prosecution witness who said that he was not sure from whose possession the drugs were recovered.

Noticing that the prosecution failed to establish the fact that narcotic drugs were recovered from the possession of the Appellant, and holding that non-compliance with Section 50 of the NDPS Act has vitiated the search and consequent conviction, the High Court allowed the appeal and acquitted the accused.

Cause Title: Abdul Hai v. State of Assam and Ors.

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