NAMID FRANCIS NWAZOR Vs. UNION OF INDIA

JUDGEMENT

(1.) This petition is directed against the conviction of the petitioner under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the NDPS Act"). Such conviction has been affirmed on appeal by the High court of Delhi. Notice was issued limited to the question of violation of the mandatory provisions of Section 50 of the NDPS Act. Learne counsel for the appellant has submitted before us that although in Balbi Singh case (State of Punjab v. Balbir Singh, Section 50 of the NDPS Act was considered in the context of a search of a "person" but the principle a to why such search should be made in the presence of a gazetted officer or judicial magistrate to ensure sanctity to such search, has been elaborated i the said decision. The learned counsel has submitted that the same principal should also be made applicable in case of search of articles belonging to th accused or search of the premises or property belonging to or possessed by the accused. In support of such contention, reference has been made to decision of a three-Judge bench of this court in Mohinder Kumar v. State Panaji, Goa. It appears that in the said case, the person of the accused was searched and the bags found in the premises were also searched. Since such search had not been effected in the presence of a gazetted police officer or magistrate as indicated in Section 50 of the NDPS Act, this court held that such search was illegal and, therefore, the accused was entitled to entitled to be acquitted for violating the mandatory provisions of Section 50. It, however,appears that in the said case, an argument was advanced that requirement for search of a person as indicated in Section 50 is also to be applied in case of search of premises or articles under the NDPS Act. Moreover, in that case, apart from search of bags found in the premises, search of the person of the accused was also made. It may, however, be indicated that following the decision in Balbir Singh case it was held in the decision of Mohinder Kumar that for non-compliance of the mandatory provision of Section 50 of the NDPS Act, the trial was vitiated thereby warranting acquittal of the accused.

(2.) Learned Additional Solicitor General, Mr K. T. S. Tulsi has, however, submitted that even if the search was illegal, the recovery actually made in respect of a narcotic substance from such search is required to be considered. In support of such contention, he has referred to two decisions of this court reported in State of H. P. v. Pirthi Chand and State of Punjab v. Jasbir Singh. In the said decisions, a Constitution bench decision of this court in Pooran Mal v. Director of Inspection (Investigation) has been taken into consideration. The learned Additional Solicitor General has submitted that unfortunately in Balbir Singh case the effect of the evidence flowing from the search even if such search was in violation of Section 50 of the NDPS Act had not been taken into consideration. It is, therefore, necessary to consider the same in the light of decision made in Pooran Mal case and in the two subsequent decisions of this court reported in Pirthi chand and Jasbir Singh.

(3.) Learned counsel for the petitioner has, however, relied on a decision of this court in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala. In the said case, person of the accused was not searched because the accused himself took out the offending substance and handed over the same to the police. But search of the article belonging to the accused was effected. Relying on the decision in Balbir Singh case it has been held by this court in Ali Mustajfa case that Section 50 of the NDPS Act had been violated and, therefore, the accused was entitled to be acquitted. The decision in Pooran Mal case was also distinguished.