Brief Facts
- Upon the body search of the appellants, packets of charas were found. Such search was conducted on the basis of the Consent Based on the recovery of the charas packets, the accused persons were convicted under section 20(b)(ii)(C) of the NDPS Act, 1985.
- The Appellants were convicted and the conviction was upheld by the High Court. At the time of hearing of the appeal before the Supreme Court the appellants had already undergone their entire sentence. However, the conviction was challenged on the ground of non-compliance of section 50 of the NDPS Act.
Issues
- Whether the consent letter obtained under section 50 of the NDPS Act would be unreliable only because it fails to mention that the accused persons were informed about their right to seek search before the gazetted officer or a Magistrate?
- Whether the accused can be acquitted on the ground that the consent letter does not record the compliance of section 50 of the NDPS Act?
Held
- The Apex Court allowed the appeals, and acquitted the appellants.
- The Apex court observed that it is an admitted position that in the consent letter, it is not mentioned that the appellants were informed about their right to insist that either a Magistrate or a Gazetted Officer remains present when their body search is conducted.
- In the light of the law laid down by a Constitution bench of this Court in the case of Vijaysinh Jadeja v. State of Gujarat (2011) 1 SCC 609, wherein it was held that “We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search”, the Supreme Court set aside the conviction of the Appellants.
Relevant Para No.
- 6, 8, 9