ALI MUSTAFFA ABDUL RAHMAN MOOSAversusSTATE OF KERALA

A               ALI MUSTAFFA ABDUL RAHMAN MOOSA
                                v.
                         STATE OF KERALA

                              SEPTEMBER 28, 1994

B                (DR. AS. ANAND AND FAIZANUDDIN, JJ.]

          Narcotic Drngs and Psychotropic Substances Act, 1985 :

          Section 5(}--Search and seizure-In the presence of a Gazetted Officer
C or a Magistrate-Option to the accused-Held : Mandatory and non-com-
    pliance of the same would vitiate the conviction.

         The appellant was found in possession of 780 grams of cbaras. He
    was convicted under S.20(b)(ii) of the Narcotic Drugs and Psychotropic
    Substances Act, 1985 and sentenced to 11 years rigorous imprisonment
D   and a fine of Rs. 1 lakh, by the Sessions Judge. On appeal the High Court
    reduced the sentence to 10 years R.I. but maintained the fine. Hence this
    appeal.

          The main contention on behalf of the appellant was that the
    provisions ofS.50 of the Act being mandatory, the violation thereof vitiates
E   the conviction and sentence and so the same could not be sustained.

          The respondent argued that the question of giving option to the
    accused in compliance with S.50 of the Act, is subject to the condition that
    the accused required that he be searched in the presence of a gazetted
    officer or a magistrate but where the accused did not so require for
F   whatever reason, his conviction would not stand vitiated; and that even if
    the search and seizure was illegal, it would not still affect the conviction
    because_ the seized articles could be used as evidence of unlawful posses-
    sion of a contraband.

G         Allowing the appeal, this Court

          HELD : 1. On account of the non-compliance with the provisions of
                                                                                   .
    Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985
    which provisions are mandatory, the conviction and sentence of the appel-
    lant cannot be sustained. Undoubtedly, before the search of the appellant
H   was made, he was not given any option as to whether he desired to be
                                         52


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               AR.MOOSAv. STATEOFKERALA[DR.ANAND,J.]                        53

    searched in the presence of a gazetted officer or a Magistrate as envisaged   A
    by Section SO. [S4-H, SS·B]



-         State of Punjab v. Balbir Singh, [1994] 3 SCC, 299, relied on.

          2. 'Unlamul possession" of the contraband is the sine qua non for
    conviction under the Act and that factor has to be established by the         B
    prosecution beyond a reasonable doubt. Indeed the seized contraband is
    evidence but in the absence of proof of possession of the same, an accused
    cannot be held guilty under the Act. [S6·H]

         Pooran Mal v. Director of Inspection, [1974] 1 SCC, 34S, distin· C
    guished.

          CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
    348 of 1991.

         From the Judgment and Order dated 10.4.90 of the Kerala High             D
    Court in Crl. A. No. 414 of 1989.

          R.N. Joshi and Harjinder Singh for the Appellant.

          G. Vfshwanatha Iyer and M.T. George for the Respondent.
                                                                                  E
         The Judgment of the Conrt was delivered by

          DR. ANAND, J. The appellant, a Kuwaiti national, was convicted for
    an offence under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic.
    Substances Ac~ 1985 (hereinafter 'the NDPS Act') and sentenced to suffer
    imprisonment for 11 years and a fine of Rs. 1 lac by the learned Sessions     F
    Judge, Quilon. His appeal against the conviction failed before the High
    Court of Kerala though the sentence of imprisonment was reduced to 10
    years RI. The imposition of fine of Rs. 1 lac as also the imprisonment in
    default of the payment of fine as imposed by the Trial Court was, however,
    maintained.
                                                                                  G
          According to the prosecution case, on 12.10.1988 at about 11.15 p.m.,
    the appellant was found in possession of 780 gms. of charas in the first class
    waiting room of the railway station at Quilon. PW-6, Ashok Kumar, Sub-
    Inspector of Police attached to the Quilon railway station, on receipt of
    reliable information that a foreigner having charas in his possession was H
    54                    SUPREME COURT REPORTS [1994) SUPP. 4 S.C.R.

A sitting at the Quilon railway station, went to the platform where PW-1
    Constable Nataraja Pillai was on patrol duty. Both PW-1 and PW-6 went
    to the first class waiting room. The appellant was found sitting there with
    a bag. On suspicion, he was questioned by PW-1 and PW- 6. The appellant
    took out a small packet of charas from his bag and handed it over to PW-6.
    On further questioning and search, PW-6 recovered three big packets of
B
    charas from the bag which was in possession of the appellant. The seizure
    of charas was effected in presence of the witnesses on the spot itself and
    the contraband was taken into possession after making the mahazar. The
    other valuable articles which were with the appellant were also taken into
    custody, after preparing the recovery memo. The contraband was weighed
c   and in the presence of witnesses, a small portion from each of the four
    packets of contraband, was taken as sample for examination. The search
    and seizure lasted till about 5.00 a.m. on 13.10.1988. The appellant was
    arrested on the spot and produced at the police station adjacent to the
    railway station. The seized articles were kept in safe custody of the police
D   station and the appellant was produced before the Magistrate, after the
    registration of the case. After further investigation, the charge-sheet was
    filed before the Chief Judicial Magistrate, Quilon who committed the case
    to the Sessions Court for trial.

          Six witnesses were examined by the prosecution and various articles
E as recovered from the possession of the appellant were exhibited as
    material objects. The contraband was found by the expert to be "charas".
    The appellant in his statement under Section 313 Cr.P.C. denied the
    seizure and disowned the bag from which the contraband had been
    recovered and seized and asserted that it was an abandoned bag and th.. t
F   the appellant had been un-necessarily linked up with the seizure of the
    contraband on misguided suspicion.


          Though a number of submissions were made by learned counsel for
    the appellant, we need not detain ourselves to deal with all those submis-
G   sions as in our opinion there is force in the main argument of the learned
    counsel for the appellant viz. that on account of the non-compliance with
    the provisions of Section 50 of the NDPS Act, which provisions have been
    held to be mandatory by this Court in State of Punjab v. Ba/bir Singh, [1994]
    3 sec, 299, the conviction and sentence of the appellant cannot be sus-
H   tained.
           AR.MOOSAv.STATEOFKERALA(DR.ANAND,J.]                           55

       From the testimony of PW ·6, it is apparent that before reaching the A
first class waiting room at the railway station, he had received information
that a foreigner was sitting with charas at the railway station. The appellant
was thereafter spotted and subjected to search and from his possession
allegedly 780 gms of charas was seized. Undoubtedly, before the search of
the appellant was made, he was not given any option as to whether he B
desired to be searched in the presence of a gazetted officer or a Magistrate
as envisaged by Section 50. In State of Punjab v. Balbir Singh {supra) it has
been held that before the authorised or empowered officer conducts a
search, he should give the accused an option to be searched either in the
presence of a gazetted officer or a Magistrate. It was also held that Section C
50 confers a valuable right on the person to be searched in the presence
of a gazetted officer or a Magistrate if he so requires and the failure to
provide that option to the accused vitiates his conviction. The Court expressly
held the provisions of Section 50 to be mandatory, the non-compliance
whereof would vitiate the conviction.
                                                                                D
       Learned counsel for the respondents on the other hand submitted
that the question of giving option to the accused in compliance with Section
50 of the Act is subject to the condition that the accused "requires" that he
be searched in the presence of a gazetted officer or a Magistrate but where
the accused does not so 'require' for whatever reason his conviction would      E
not stand vitiated, in case the option was not given to him. A similar
argument had been advanced in Balbir Singh's case (supra) and the Bench
repelled the same after a detailed discussion and observed :


        "The words "if the person to be searched so desires" are important.     F
        One of ihe submissions is whether the person who is about to be
        searched sould by himself make a request or whether it is obligatory
        on the palt of the empowered or the authorised officer to inform such
        person that if he so requires, he would be produced before a Gazetted
        Officer or a Magistrate and thereafter the search should be conducted. G
        Jn the context in which this right has been conferred, it must naturally
        be presumed that it is imperative on the palt of the officer to inform
        the person to be searched of his 1ight that if he so requires to be
        searched before a Gazetted Officer or a Magistrate. To us, it appears
        that this is a valuable right given to the person to be searched in H
    56                    SUPREME COURT REPORTS (1994] SUPP. 4 S.C.R.

A            the presence of a Gazetted Officer or a Magistrate if he so
             requires, since such a search would impart much more authenticity
             antl creditworthiness to the proceedings while equally providing
             an important safeguard to the accused. To afford such an oppor-
                                                                                     •
            t!mity to the person to be searched, he must be aware of his right and
B           that can be done only by the authorised officer informing him. The
            language is clear and the provision implicitly makes it obligatory
            on the authorised officer to inform the person to be searched of
            his right. (Emphasis Supplied)

C        We respectfully agree with the above observations and reject the
    submission made on behalf of the respondents.

          Learned counsel for the respoondents then submitted that the judg-
    ment in Balbir Singh's case (supra) requires reconsideration. We cannot
    agree. There are no compelling reasons advanced by the learned counsel
D   for the respondents for the reconsideration of the judgment in Balbir
    Singh's (supra).

           The last submission of the learned counsel for the respondents is that
    even if the search and seizure of the contraband are held to be illegal and
E   contrary to the provisions of Section 50 of the NDPS Ac~ it would still not
    affect the conviction because the seized articles could be used as "evidence"
    of unlawful possession of a contraband. Reliance for this submission is
    placed on the judgment of this Court in Pooran Mal v. Director of Inspec-
    tion, (1974] 1 SCC 345. We are afraid the submission is misconceived and
    the reliance placed on the said judgment is misplaced. The judgment in
F   Pooran Mal's case (supra) only lays down that the evidence collected as a
    result of illegal search or seizure, could be used as evidence in proceedings
    against that party under the Income-Tax Act. That judgment cannot be
    interpreted lay down that a contraband seized as a result of illegal search
    or seizure, can be used to fasten the liability of unlawful possession of the
G   contraband on the person from whom the contraband had allegedly been
    seized in an illegal manner. "Unlawful possession" of the contraband is the
                                                                                     l
    sine qua non for conviction under the ND PS Act and that factor ha• to be
    established by the prosecution beyond a reasonable doubt. Indeed the
    seized contraband is evidence but in the absence of proof of possession of
H   the same, an accused cannot be held guilty under the NDPS Act.
              AR.MOOSAv. STATEOFKERALA[DR.ANAND,J.]                       57

           In view of the law laid down in Balbir Singh's case (supra), we hold A
    that there has been violation of the provisions of Section 50 of NDPS Act
    and consequently the conviction of the appellant cannot be sustained. We,
    therefore, allow this appeal and set aside the conviction and sentence of
    the appellant. He is directed to be released forthwith unless required in
    any other case.

    G.N.                                                    Appeal allowed.




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