TMI Blog1995 (4) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... scot free due to non-compliance thereof. Such instructions would be of great value in the effort to curb drug trafficking. At the same time, those accused of possessing drugs should, however heinous their offence may appear to be, have the safeguard that the law prescribes. For the reasons aforestated, the conviction of the appellants under the NDPS Act and the sentence imposed upon them for the same must be set aside. For the conviction of the appellants under the provisions of the Bombay Prohibition Act no separate punishment was awarded. The High Court has not dealt with the aspect of these offences. As find that the `panchas’ did not support the evidence of PSIs Rathod and Rana, which further weakens the case that `charas’ was found in the possession of the appellants. We cannot, therefore, sustain their conviction under the Bombay Prohibition Act. Appeal allowed. - 485 of 1995 - - - Dated:- 3-4-1995 - A.M. Ahmadi, CJI, S.P. Bharucha and G.T. Nanavati, JJ. [Judgment per : S.P. Bharucha, J.]. Special leave granted. 2. The appeal is directed against the judgment and order of a Division Bench of the High Court of Gujarat. The High Court upheld the conviction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, to that effect. The High Court noted the judgment of this Court in the case of State of Punjab v. Balbir Singh - 1994 (3) SCC 299, and observed that it was an imperative requirement that a police officer intending to search a person for the possession of articles covered by the NDPS Act should inform him that he had a right to be searched, if he so chose, in the presence of a Gazetted Officer or a Magistrate. The High Court then stated : In nutshell we may say that both PSI Rathod and PSI Rana have stated almost each and everything in their evidence regarding the information received by them, calling for the Panchas going to the place of offence, searching the accused and on search finding of muddamal Charas" of 55 grams from accused No. 1 and 10 grams each from accused Nos. 2 and 3. What is not stated by them before the Court is that they had informed the accused about their right under Section 50 of the NDPS Act to be searched in presence of a Gazetted Officer or a Magistrate. In our opinion, Mr. Shelat, learned Additional PP was right in submitting that the Court has to raise presumption that PSI Rathod and PSI Rana must have informed the accused about their such a right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to the innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted. 22.......Therefore, it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory." 6. It is to be noted that under the NDPS Act punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than Rupees one lakh but which may extend to Rupees two lakhs, and the Court is empowered to impose a fine exceeding Rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the NDPS Act was not established. 8. We are unable to share the High Court s view that in cases under the NDPS Act it is the duty of the court to raise a presumption, when the officer concerned has not deposed that he had followed the procedure mandated by Section 50, that he had in fact done so. When the officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty bound to conclude that the accused had not had the benefit of the protection that Section 50 affords; that, therefore, his possession of articles which are illicit under the NDPS Act is not established; that the pre-condition for his having to satisfactorily accounted for such possession has not been met; and to acquit the accused. 9. The High Court relied upon the fact that the argument that Section 50 had not been complied with had not been made before the trial court and held that a point of fact could not be taken for the first time in appeal. The protection that Section 50 gives to those accused of bei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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