[NDPS Act] Before Conducting Search Of Person, Accused Must Be Informed Of Right To Seek Presence Of Magistrate Or Gazetted Officer: Kerala HC

While speaking out most valiantly, most vociferously and most validly in full unstinted support of strongly protecting the legal rights of the accused, it is most heartening to note that the Single Judge Bench comprising of Hon’ble Ms Justice Mary Joseph of the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Sipahi Kumar vs State of Kerala in CRL.A No. 322 of 2021 along with CRL.A No. 545 of 2021 against the judgment dated 27.04.2021 IN SC No.145 of 2019 of the First Additional Sessions Court, Thrissur and which is cited in Neutral Citation No.: 2023:KER:85034 and so also has been cited in 2024 LiveLaw Ker 360 that was finally heard on 27.07.2023 and then finally delivered on 31.07.2023 has held unequivocally that before conducting the body search of a person, the person has to be informed of his right to have the presence of either the Magistrate or a Gazetted Officer to witness his body search. It is most reassuring to note that the Kerala High Court clearly held in no uncertain terms that unless he was informed of his right in the way he understands, the formalities under Section 50 of the Narcotics and Psychotropic Substance Act (NDPS Act) cannot be deemed to have been fulfilled. We thus see that in this leading case the Kerala High Court held unambiguously that the prosecution could not prove the case beyond reasonable doubt and so it was but natural that the accused were acquitted. Very rightly so!

At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Mary Joseph of the Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 about the origin of the appeals that, “Both these appeals are originated from the judgment of 1st Additional Court of Sessions, Thrissur (for short, ‘the court below’) on 27.04.2021 in S.C No.145/2019.”

As we see, the Bench then discloses in para 2 that, “The above case was the outcome of a crime registered as Crime No.33/2018 by Excise Range Office, Thrissur. The appellant in Crl.Appeal No.545/2021 is accused No.1 and he was found guilty, convicted and sentenced to undergo rigorous imprisonment for 15 years and to pay fine of Rs.1,00,000/- under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (For short, ‘the N.D.P.S Act’) and to undergo a further period of rigorous imprisonment for six months in default of payment of fine.”

As things stands, the Bench then reveals in para 3 that, “Accused No.2 is found guilty, convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,00,000/- under Section 20B(ii)(B) NDPS Act and to undergo rigorous imprisonment for six months, in default of payment of fine.”

To put things in perspective, the Bench envisages in para 4 that, “Aggrieved by the judgment, both accused have preferred the appeals aforestated. As per the allegations of the prosecution, on 17.09.2018 at about 12.30 p.m, the Excise party led by the Excise Inspector of Excise Range Office, Thrissur, restrained the accused on the basis of some suspicion at a place near the bus waiting shed at Mannuthy College of Veterinary and Animal Sciences. Body search of the accused were conducted and 4.060 Kgms of hashish was seized from the bags carried by each of them. The accused were arrested from the spot and the hashish was seized from them.”

As it turned out, the Bench enunciates in para 5 that, “Crime No.33/2018 was registered. Investigation was proceeded with and on culmination of it, a Final Report was laid against the accused before Court of Sessions, Thrissur chargesheeting them respectively for the aforesaid offences. The case was made over by that court to the Ist Additional Court of Sessions, Thrissur for trial and disposal. Production warrant was issued to the accused who were in judicial custody then and produced before Court. Copies of the relevant documents proposed to be relied by the prosecution were served on each of them. Accused No.2 was represented by a counsel of his own choice. Accused No.1 was given the aid of a counsel at the expense of the State. The learned Public Prosecutor, the counsel representing accused No.2 and the counsel appointed on state brief for accused No.1 were heard. Documents on the files of the court relating to the case on hand were pursued. Charge was framed against both the accused for offences punishable under Section 20(b)(ii)(C) NDPS Act. It was read over and explained to each of them through a translator appointed by the court. Each of them pleaded not guilty and claimed to be tried. Those were translated to the court by the translator and therefore was recorded in Malayalam.”

Do note, the Bench notes in para 18 that, “As rightly pointed out by the learned counsel, the right of the accused to have his body search conducted in the presence of a Gazetted Officer or Magistrate as contemplated under Section 50 of the NDPS Act was evidenced as not conveyed to each of the accused in the language known to them. Therefore, it can only be held that the accused was not effectively communicated of his right as envisaged under Section 50 NDPS Act and therefore, the mandatory requirements of Section 50 NDPS Act have not complied with. The consequence of which was that body search itself is illegal.”

Be it noted, the Bench notes in para 19 that, “In the body search of the accused, properties of incriminating nature were not recovered. Recovery of the contraband was from the bags carried by each of the accused and the substance recovered was convinced prima facie as hashish, by PW4 and other people accompanying him. The samples drawn from the property were forwarded to the Chemical Examiner’s Laboratory for examination and those were ascertained in the analysis held there as hashish. The certificate issued therefrom was marked in evidence as Ext.P21.”

It cannot be just glossed over that the Bench points out in para 20 that, “For establishing that the contraband was possessed by each of the accused and recovered from their possession, the oral evidence of PW1, PW3, PW4 and PW5 were relied on by the prosecution. PW4, the Excise Inspector has deposed strictly in tune with the case of the prosecution. The officer who accompanied PW4 to the spot and claimed to have witnessed the detection, search and seizure was examined as PW1. PW1 does not have a claim that he knows Hindi. According to him, what have been transpired among PW4 and each of the accused were narrated to him by PW4 in Malayalam. He also does not raise a claim that he heard PW4 conveying to the accused about their rights under Section 50 NDPS Act in Hindi. Documentary evidence is also not forthcoming to establish that the communication was made by PW4 to each of the accused in Hindi. Thus, the version of PW1 did not corroborate with that of PW4 on that aspect.”

It cannot be lost sight of that the Bench concedes in para 21 that, “PW4 alone gave the version that the accused were conveyed of the grounds of their arrest. PW1 though claimed to have been present at the spot at the relevant time did not depose accordingly.”

It is worth noting that the Bench notes in para 22 that, “PW3 was examined by the prosecution to have an independent support its case. According to PW3, he was a labourer at Mannuthy Veterinary Unit and at about 12’o clock when he proceeded from his workplace to have lunch from home, two persons were found standing at the nearby Bus stop and one among them handing over some substance to the other and the latter keeping it in his bag. He also found the Excise Jeep proceeding towards those persons and the officials interacting with them. He heard the accused agreeing for the conduct of their body search by PW4. According to him, PW5 was requisitioned by PW4 and when he arrived at the spot, the latter conducted his own body search. Then he searched the body of each of the accused, but nothing of incriminating nature was recovered. Then the bags carried by each of them were examined and the contraband were recovered. PW3 does not have a case that he heard PW4 communicating to the accused in Hindi language. Thus the version of PW3 did not corroborate with that of PW4. PW5 is the Gazetted Officer whose presence was brought to the spot to witness the body search of the accused. PW5 was brought to the spot inspite of the denial of the accused to have him as a witness during search of their body. As already stated, the right of the accused under section 50 of NDPS Act was not effectively communicated to each of them. Therefore, the search of the body of the accused was not in conformity to that provision and therefore, is illegal.”

Most significantly, the Bench mandates in para 26 that, “Therefore, the position of law is well settled that compliance of Section 50 is mandatory only with respect to recovery of contraband from the search of the body of a person and not with respect to search of a vehicle or container or bag or premises and recovery therefrom. In the case on hand, as already discussed, body search was held in the presence of a Gazetted Officer but without effectively communicating the right of the accused to have the presence of a Gazetted Officer or Magistrate to witness the search. But, the contraband having been recovered from the bags carried by each of them, the recovery cannot be said to be the result of an illegal search.”

Finally and as a corollary, the Bench then concludes by holding in para 34 that, “In view of the above discussion, this Court is inclined to hold that the recovery of the contraband from the possession of the accused was not proved by the prosecution beyond reasonable doubt. Apart from the above, the Gazetted Officer who was procured to the spot to witness the search against denial of the accused to have one, himself conducted the investigation. The independent witness who had spoken indifferently from the versions of the official witnesses would undoubtedly also create suspicion in the mind of this Court about the veracity of the prosecution allegations. In the result, both appeals are allowed. Judgment of conviction and sentence of the accused are set aside. The bail bond of accused No.1 stands cancelled and he is set at liberty. Accused No.2 is already on bail. He is also set at liberty forthwith.”

Sanjeev Sirohi, Advocate,

s/o Col (Retd) BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.