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With this view, top court has set aside conviction of appellants before it and acquitted them of the offences, though they had already undergone substantive sentence of 10 years imprisonment and a period of six months in default of payment of Rs One lakh fine.
The Supreme Court has underscored the importance of a statutory right to insist upon presence of a magistrate or gazetted officer during the body search of a person accused of carrying a contraband substance under the Narcotic Drugs and Substances Act.
Bench comprising Justices Abhay S Oka and Pankaj Mithal has held that a conviction cannot be sustained in violation of statutory safeguards provided under Section 50 of the NDPS Act.
In the case before court, the prosecution submitted that during the body search of the appellant-accused, packets of charas were found.
On the other hand, Advocate Sanjay Singh, appearing for accused submitted that a police officer, who was present at the time of the seizure of the contraband, in his cross-examination admitted that a consent letter was already prepared on which the signatures of the appellants were taken.
Court was further told the officer also admitted that there was no mention in the consent letters that the appellants were informed that they have a right to say that their body search should be conducted before a magistrate or a gazetted officer.
Singh also cited the consent letter which only recorded that the appellants had voluntarily agreed to a body search.
Noting this admitted position that the appellants were not informed about their right to insist that either a magistrate or a gazetted officer remains present when their body search is conducted, the bench said, "In view of the law laid down by a Constitution bench of this Court in Vijaysinh Jadeja vs State of Gujarat (2011), it is crystal clear that there was a violation of the safeguard provided by Section 50 of the NDPS Act".
Reliance was further placed upon the judgement, which stated, "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."
Court declared the conviction of the appellants to be unsustainable.
"Accordingly, the appeals are allowed, and the appellants are acquitted of the offences alleged against them. If the appellants are already enlarged on bail, we direct that their bail bonds stand cancelled. If the appellants continue to be in custody, they shall be forthwith set at liberty", it ordered.
Case Title: Mina Pun vs. State of Uttar Pradesh
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