The Uttrakhand High Court while acquitting an accused 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 is a sufficient ground for acquittal.

The single-judge bench of Justice Alok Kumar remarked that it is well settled that when the law provides for doing an act in a particular manner, it necessarily prohibits the doing of that act in any other manner.

Brief Facts of the Case

The appellant was convicted and sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of ₹1,00,000/- for the offence under Section 18 read with Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Amicus Curiae in the case contended that the mandatory provision of Section 50 of the Act, 1985, was not followed by the searching party. The appellant was not informed of his legal right by the searching officer and therefore, the impugned judgment is bad in the eyes of law.

State's Counsel on the other hand supported the judgement.

High Court's Observation

Taking note of the sequence of the events, the court noted that when the two Police officials were on patroling duty, the appellant-accused was apprehended and told that he had one kg. Charas. They told him that he was to be searched before a Magistrate or a Gazetted Officer, so did he want to go to any of them for search, to which he refused saying that he has faith in them. He asked the police party to search him and on his search, one kg. Charas  was recovered from the pajama he was wearing.

The Court further noted that as per the eye-witnesses, appellant-accused was not informed of his legal right to be searched in the presence of a Gazetted Officer or a Magistrate. Rather, he was asked if he 'desires' to be searched before the Magistrate or a Gazetted Officer.

In view of the above, the court observed that Section 50 of the Act, 1985, casts duty on empowered officer to inform the suspect of his right to be searched in the presence of the Gazetted Officer or Magistrate and cited Vijaysinh Chandubha Jadeja Vs State of Gujarat (29 October 2010) and Arif Khan vs. State of Uttarakhand, (2018) wherein the Supreme Court 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.

The Court thus observed that in the present matter, the appellant was not informed of his legal right, therefore, non-compliance of Section 50 of the Act, 1985 makes the sufficient case for acquittal.

It accordingly allowed the appeal and set aside the impugned judgement. The accused's release was also ordered.

CASE TITLE: Devendra Singh Malik vs State of Uttarakhand

CASE DETAILS: CRIMINAL APPEAL NO. 01 of 2006

CORAM: Justice Alok Kumar

Advocates Mr. Sandeep Adhikari, Amicus Curiae, Mr. S.T. Bhardwaj, Deputy Advocate General.

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