Legal Right Of An Accused U/s. 50 Of NDPS Act Is Mandatory- Uttarakhand HC Overturns 17 Year Old Conviction

The Uttarakhand High Court while acquitting a man who was in jail for the last 17 years has observed that non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) was a sufficient ground for acquittal.

The Bench of Justice Alok Kumar Verma remarked that “It is well settled that when the law provides for doing of an act in a particular manner, it necessarily prohibits the doing of that act in any other manner.”

The Bench said that as per Section 50 of the Act, a duty is cast on the empowered officer to inform the suspect of his right to be searched in the presence of the Gazetted Officer or Magistrate. But the appellant was not informed of his legal right.

“...therefore, non-compliance of Section 50 of the Act, 1985 makes sufficient case for acquittal. Accordingly, the present appeal is allowed. The impugned judgment of the conviction and sentence dated 15.12.2005, passed by learned Special Sessions Judge, Champawat, is set aside. Appellant is acquitted of the charge under Section 18 read with Section 20 of the Act, 1985.” observed the Bench.

Amicus Curiae Sandeep Adhikari appeared for the Appellant and Deputy Advocate General S.T. Bharadwaj appeared for the respondent.

In this case, the appellant was convicted for the offence punishable under Section 18 read with Section 20 of the NDPS Act and was sentenced to undergo imprisonment for a period of ten years along with a fine of Rs. 1,00,000/- for the offence.

The High Court noted that as per the witnesses, appellant- accused was not appraised of his right to be searched before a Gazetted Officer or a Magistrate. Rather, he was asked if he desired to be searched in the presence of the Magistrate or a Gazetted Officer.

The Court relied upon the decision of Apex Court in the case of Arif Khan vs. State of Uttarakhand, (2018) 18 SCC 380, wherein it was held that the suspects may or may not choose to exercise the right provided to them under Section 50 of the NDPS Act but as far as the officer is concerned, an obligation is cast upon him under Section 50 of the NDPS Act to apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate.

Accordingly, the appeal was allowed, and the judgment of conviction was set aside.

Cause Title- Devendra Singh Malik v. State of Uttarakhand

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