NDPS - If recovery is held illegal - No Conviction - Supreme Court
SEVERAL judgements of the Supreme Court have loudly and clearly held that Section 50 of the NDPS Act requires the searching officer to inform the searched person his right of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. The officers normally don't follow this and end up losing the cases.
Yet another such case was decided by the Supreme Court yesterday.
The Supreme Court observed,
“ Ingenuity of counsel sometimes results in formulation propositions, which appear at the first flush to be legally sound and relatable to recognized cannons of criminal jurisprudence. When examined in greater depth, their rationale is nothing but illusory; and the argument is without substance. One such argument has been advanced in the present case by the counsel for the appellant State who contends that ‘even where the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 have not been complied with, the recovery can otherwise be proved without solely relying upon the personal search of the accused ''.
The Supreme Court held,
Satisfaction of the requirements in terms of Section 50 of the Act is sine qua non prior to prosecution for possession of an unlawful narcotic substance.
It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed. As already held by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja , the theory of ‘substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right.
Once the recovery is held to be illegal that means the accused did not actually possess the illicit article or contraband and that no such illicit article was recovered from the possession of the accused such as to enable such conviction of contraband article.
We bring you this judgement today. Please see Breaking News.