Authorized Officer Under An Obligation To Inform The Accused Of His Right Under Section 50

Date of judgement:
28/09/1994

Bench:
HON’BLE JUSTICE A.S. ANAND

Parties:
Plaintiffs – ALI MUSTAFA ABDUL RAHMAN MOOSA
Respondent – STATE OF KERALA

SUBJECT

The Court, in this case, held that the authorized officer is under an onligation to inform the accused of the right to be searched in the presence of a Magistrate or a Gazetted Officer. 

OVERVIEW

• In this case, the appellant was a resident of Kuwait and was sentenced under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 for 11 years of imprisonment and along with a fine of Rs. 1 lakh.
• The term of imprisonment was reduced to 10 years by the High Court of Kerala upon appeal.
• 780 gms of charas was found in the possession of the appellant in the waiting room of the Quilon Railway Station.
• The seizure as well as weighing of the drug was made in the presence of the witnesses.
• The appellant was arrested on the spot and the trial was initiated.
• The drug was identified as charas by an expert and six witnesses were examined. 

ARGUMENTS FROM THE APPELLANT

• The appellant, in his statement under Section 313 of CrPC, disowned  the bag from which the drug was obtained. 
• He alleged that he had been wrongly linked with the bag which was abandoned.
• Furthermore, the appellant alleged that the provisions of Section 50 of NDPS had not been complied with and the accused was not asked if he wanted to be searched in the presence of a Gazetted Officer Magistrate.

ARGUMENTS BY THE RESPONDENT

• The respondent contended the requirement under Section 50 implies that the accused has a right to be searched in the presence of the Gazetted Officer or Magistrate if he so "requires" but where no such desire is expressed by the accused, the proceedings would not be vitiated.
• The respondent further pleaded the Court to review the Balbir Singh judgment.
• The seizure aintes to evidence of unlawful possession of contraband.

RELEVANT PROVISIONS

The Narcotic Drugs and Psychotropic Substances Act, 1985

• Section 50: Conditions under which search of persons shall be conducted

ISSUES RAISED

• Whether the authorised officer is under an obligation to inform the accused of his right to be searched in the presence of a Gazetted Officer or Magistrate?
• Whether the Balbir Singh judgment should be reviewed?

ANALYSIS BY THE COURT

• The Court while referring to  the judgment of State of Punjab v. Balbir Singh, held that, the empowered/authorised officer should, before conducting the search, give an option to the accused persons to be examined either in the presence of a Gazetted Officer or a Magistrate. The Court, in the aforementioned case, had held that this right, envisaged under Section 50 of the NDPS Act, is a mandatory provision and non-compliance with this provision would vitiate the trial.
• The Court noted that in the instant case, the accused had not been asked if he desired to be searched in the presence of a Gazetted Officer or a Magistrate.
• The Court agreed with the judgment of the Balbir case and held that the authorised officer must have informed the accused of his right.
• The Court held that there were no compelling reasons to review the Balbir Singh judgment.
• Lastly, the Court held that unlawful possession of a contraband needs to be provided beyond reasonable doubt by the prosecution and seizure is only evidence of the contraband and not of unlawful possession.
• The Court thus set aside the conviction order of the accused and directe his release.

CONCLUSION

• The right under Section 50 has been granted to the accused so as to provide the search with greater credibility and creditworthiness. The Court, in the Balbir case as well as the instant case, rightly held that this right can be exercised by the accused only if he is aware of the right and hence the authorised officer is under an obligation to inform the accused about the right.
• The general public is usually unaware of the rights vested in them and particularly when these rights relate to specific offences such as those in NDPS Act and hence there is a responsibility on the part of the officials to inform the people of their right and this obligation shall not be waived at any rate.

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