In a couple of criminal appeals filed before the Jharkhand High Court against an order of conviction and sentence dated 13-02-2009 by the Sessions Judge-cum-Special Judge of Narcotic Drugs and Psychotropic Substances Act whereby the appellants were held guilty for offences under Section 18(C) of the NDPS Act, a Single Judge Bench of Justice Pradeep Kumar Srivastava set aside the impugned judgment and acquitted the appellants of all charges.
The Officer-in-Charge received confidential information that two persons riding a motorcycle were carrying opium. A police force led by the Deputy Superintendent of Police (Dy.S.P.) chased, apprehended, and searched both the individuals. A joint seizure list was prepared in the presence of two independent witnesses, stating that a green plastic bag containing one kilogram of liquid opium was recovered from each person, alongside a mobile phone and various gold and silver ornaments found in the motorcycle dicky. Subsequently, a case was registered under Section 8(c)/18 of the NDPS Act, and the trial court ultimately found the appellants guilty under Section 18(C), sentencing them to undergo rigorous imprisonment for seven years along with a fine of Rs. 25,000/-.
The appellants argued that the search was not conducted as per Section 50 of the NDPS Act and submitted that the trial court had opined that violating Section 50 was not fatal to the prosecution’s case.
The Court analyzed the recorded testimonies of nine prosecution witnesses and multiple material exhibits and found that the Dy. S.P. had not been made a charge-sheet witness. It was also found that the seized opium had not been weighed and the Court stated that the most glaring aspect was that except the informant, none of the prosecution witnesses had proved any recovery of illicit liquid opium.
Regarding personal search under Section 50, the Court cited the Supreme Court’s decision in Arif Khan v. State of Uttarakhand (AIR) 2018 SC 2123 and VijaySinh Chandubha Jadeja v. State of Gujarat (2011) 1 SCC 609 while holding that it is imperative for the police officer to apprise the person intended to be searched of his right under Section 50 to be searched only before a Gazetted officer or a Magistrate. In the present case, the personal search was conducted by the Officer-in-Charge i.e. the informant himself, who failed to communicate the said mandatory statutory right to the accused persons.
The Court held that the conviction and sentence of the appellants was absolutely illegal and violated the mandate of law. Thus, the impugned judgment was set aside and the criminal appeals were allowed while acquitting the appellants of all charges, and discharging them from the liability of their bail bonds as well as sureties.
