KRISHNA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) HEARD the learned Counsel for the appellant and the learned State Public Prosecutor.

(2.) THE appellant was accused of offences punishable under sections 8C and 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to as the 'NDPS Act', for brevity)

(3.) THE learned Counsel for the appellant would straight away submit that the entire case of the prosecution is based on the recovery said to have been made of the contraband in the possession of the appellant. In this regard PW.3 was said to be an independent mahazar witness. In his testimony, several contradictions have been elicited, but the court below has not taken note of the same and has glossed over the said circumstance. More importantly, the learned Counsel would submit that in carrying out the search on the person of the accused, the law is well settled, as noticed in a recent decision of the Supreme Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat, : AIR 2011 SC (Criminal) 110. That with reference to Section 50 of the NDPS Act, there are prescribed conditions under which a personal search of a person is required to be conducted. The Section stood amended by Act 9 of 2001, inserting sub -sections (5) and (6) with effect from 2.10.2001. This was warranted, because while considering the question of compliance of section 50 of the NDPS Act, a constitution bench in the case of State of Punjab vs. Baldev Singh : 1999 Crl.L.J. 3672, had observed that when an empowered officer or a duly authorized officer acting on prior information, is about to search a person, it was imperative to inform a person concerned of his right under sub -section (1) of section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, the said information may not necessarily be in writing. But a failure to inform the person concerned about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused and that search made by an empowered officer on prior information, without informing the person of his right, that if he so requires he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct a search before a Gazetted Officer or a Magistrate, may not vitiate the trial, but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of section 50 of the Act.