Holding

Non‑compliance with the mandatory provisions of Section 42(2) and Section 50 of the NDPS Act renders the investigation illegal and the accused entitled to acquittal.

Summary

Beckodan Abdul Rahiman was arrested after a police search that uncovered 11 grams of opium. The search was conducted without complying with the mandatory procedural safeguards under Section 42(2) and Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985, namely the requirement to forward a written record of the information to a superior officer and to inform the accused of his right to have the search conducted in the presence of a gazetted officer or magistrate. He was convicted under Sections 9(c) and 18 of the Act and sentenced to ten years’ rigorous imprisonment and a fine. On appeal, the Supreme Court examined whether the breach of these mandatory provisions invalidated the prosecution’s case. Relying on earlier decisions that treat these provisions as essential safeguards, the Court held that the non‑compliance rendered the investigation illegal and the case not established. Consequently, the appeal was allowed, the conviction set aside and the appellant released.

Issues considered

Does failure to comply with Section 42(2) of the NDPS Act invalidate the prosecution's case?
Does failure to comply with Section 50 of the NDPS Act invalidate the prosecution's case?
Should the accused be acquitted where mandatory procedural safeguards under the NDPS Act are violated?

Legislation cited

Narcotic Drugs and Psychotropic Substances Act, 1985s. 18, s. 42, s. 50, s. 9

Subjects

NDPS ActSection 42Section 50search and seizuremandatory procedural safeguardsacquittalcriminal procedure

Judgment

BECKODAN ABDUL RAHIMAN A
v.
STATE OF KERALA

APRIL 16, 2002

B
[R.P. SETHI AND D.M. DHARMADHIKARI, JJ.]

., Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 42(2)
and 50-Mandatory provisions-Non-compliance-Effect of-Held, in view of
the violation of mandatory provisions accused entitled to be acquitted. C
Accused-appellant was prosecuted under Sections 9(c) r/w Section 18
of Narcotic Drugs and Psychotropic Substances Act, 1985. Prosecution case
was that PW-I after recording information, searched the accused in presence
of witness and found him in possession of opium. When the accused was
inquired as to whether he would like to meet any higher official or Gazetted D
Officer he replied in negative. He was convicted and sentenced for the offence
by trial court and in appeal the conviction and sentence was upheld.

In appeal to this Court appellant assailed the impugned judgment on
the ground of violation of provisions of Sections 42(2) and 50 of the Act.
E
Allowing the appeal, the Court

HELD : 1.1. The mandatory provisions of sub-sections (2) of Section
42 and Section 50 of the Narcotic Drugs and Psychotropic Substances Act,
1985 were not complied with by the prosecution which rendered the case as F
not established. Hence, the appellant is entitled to be acquitted. [59-C-D]

1.2. In the instant case violation of the mandatory provisions is writ
large, as PWI had not complied with the mandate of sub-section (2) of Section
42 of the Act. Similarly, the provisions of Section 50 have not been complied
with as the accused has not been given any option as to whether he wanted G
to be searched in presence of a Gazetted Officer or Magistrate. The accused
was required to be apprised of his right conferred under Section 50 giving
him the option to search being made in the presence of Gazetted Officer or
Magistrate. The accused is not shown to have been apprised of his right nor
any option offered to him for search being conducted in the presence of the
H
53
' )·--.

54 SUPREME COURT REPORTS [2002) 3 S.C.R.

A Magistrate. [58-H; 59-A-B]

State of Punjab'v. Baldev Singh, [1999) 6 SCC 172; State of Punjab v.
Balbir Singh, [lJ94] 3 SCC 299 and Saiyad Mohd Saiyad Umar Saiyad and
Ors. v. State of Gujarat, [1995) 3 SCC 610, referred to.

B CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
619 of 1997.

From the Judgment and Order dated 17.3.1995 of the Kerala High

c
Court in Crl. A.No. 290 of 1992.

T.N. Singh (N.P.) for the Appellant.

Ramesh Babu M.R. for the Respondent.
.....,..

'
The Judgment of the Court was delivered by

D SETHI, J. For allegedly possessing 11 gms. of opium without licence,
the appellant has been convicted under Section 9 (c) read with Section 18 of
the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred
to as "the Act"). He has been sentenced to undergo rigorous imprisonment )"-
for 10 years and to pay a fine of Rs. 1 lakh and in default of payment of fine
to suffer further rigorous imprisonment for six months. It is stated at the Bar
E that the appellant has already undergone sentence of about 8 years.

No-one has appeared for the appellant. From the memo of the appeal
it is found that the conviction and sentence awarded to the appellant has been
assailed mainly on the ground of violation of the provisions of Sections 42
and 50 of the Act.· The learned counsel, appearing for the respondent-State
F has, however, contended that as there was substantive compliance of the
provisions of the Act, no interference is called for.

According to the prosecution, the Sub Inspector of Police received a
telephonic message on 6.10.1990 at about 8.30 A.M. that narcotic drugs were
being sold at T.C. Junction. He recorded the information in the general diary
G and proceeded to the scene of occurrence in a jeep. On reaching T.C. Junction
at about 8. 45 A.M. he saw the accused carelessly walking from the bus
shelter towards Kathu Parambu side. Allegedly seeing him in suspicious
).
condition, the Sub Inspector along with his party approached him and after
disclosing his identity searched the person of the accused in presence of
H witnesses. It was found that inside the fold of Dhoti, which the appellant was
. . __(

BECKODAN ABDUL RAHIMAN v. STATE OF KERALA [SETHI, J.] 55

wearing, opium had been concealed in a polythene bag. As he was found A
unauthorisedly possessing the opium, he was arrested and the opium seized
was weighed to be 11 gms. Out of that 2 gms. each were separated and two
samples were roped in plastic paper. On enquiry from the accused whether
he would like to meet any higher official or Gazetted Officer, he allegedly
replied in negative. Section. 42 of the Act provides: B
"42. Power of entry; search, seizure and arrest without warrant or
authorisation. - (1) Any such officer (being an officer superior in
rank to a peon, sepoy or constable) of the departments of central
excise, narcotics, customs, revenue intelligence or any other department
of the Central Government or of the Border Security Force as is C
empowered in this behalf by general or special order by the Central
Government, or any such officer (being an officer superior in rank to
a peon, sepoy or constable) of the revenue, drug control, excise,
police or any other department of a State Government as is empowered
in this behalf by general or special order of the State Government, if
he has reason to believe from personal knowledge or information D
given by any person and taken down in writing, that any narcotic
drug, or psychotropic substance, in respect of which an offence
punishable under Chapter IV has been committed or any document or
other article which may furnish evidence of the commission of such
offence is kept or concealed in any building, conveyance or enclosed E
place, may, between sunrise and sunset -

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any
obstacle to such entry;
F
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
conveyance whicq he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the G
commission of any offence punishable under Chapter IV relating
to such drug or substance; and

(d) detain and search, and, if he thinks proper, arrest any person

- whom he has reason to believe to have committed any offence
punishable under Chapter IV relating to such drug or substance: H
56 SUPREME COURT REPORTS {2002] 3 S.C.R.

A Provided that if such officer has reason to believe that a search warrant
or authorisation cannot be obtained without affording opportunity for
the concealment of evidence or facility for the escape of an offender,
he may enter and search such building, conveyance or _enclosed place
at any time between sun set and sun rise after recording the grounds
of his belief.
B
(2) Where an officer take3 down any information in writing under
sub-section (I) or ·records grounds for his belief under the proviso
thereto he shall forthwith send a copy thereof to his immediate official
superior. " \ ..

c Section 50 of the Act prescribes:

"50. Conditions under which search of persons shall be conducted -
(1) When any officer duly authorised under section 42 is about to
search any person under the provisions of Section 41, section 42 or
section 43, he shall, if such person so requires, take such person
.D without unnecessary delay to the nearest Dazetted Officer or ,any of
the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until
he can bring him before the Gazetted Officer or the Magistrate referred
E to in sub-section (I).

(3) The Gazetted Officer or the Magistrate before whom any person
is brought shall, if he sees no reasonable ground for search, forthwith
discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female. "
F
Keeping in mind the grave consequences which are likely to follow on proof
of possession of illicit articles under the Act, namely, the shifting of the onus
to the accused and severe punishment to which he becomes liable, the
Legislature has enacted and provided certain safeguards in various provisions ·
of the Act including Sections 42 and 50 of the Act. A Constitution Bench of
-a this Court in State of Punjab v. Baldev Singh, [ 1999] 6 SCC 172 has held that
while conducting search and seizure in addition to the safeguards provided
under the Code of Criminal Procedure, the safeguards provided under the Act
are also required to be followed. The harsh provisions of the Act cast a duty-·
upon the prosecution to strictly follow the procedure and compliance of the
H safeguards. In that case the Court observed:
BECKODAN ABDUL RAHIMAN v. STATE OF KERALA [SETHI, J.] 57

"Prior to the passing of the NDPS Act, 1985 control over narcotic A
drugs was being generally exercised through certain Central enactments
though some of the States also had enacted certain statutes with a
view to deal with illicit traffic in drugs. The Opium act, 1857 related
mainly to preventing illicit cultivation of poppy, regulating cultivation
of poppy and manufacture of opium. The Opium Act, 1878
supplemented the Opium Act, 1857 and made possession, B
transportation, import, export, sale, etc., of opium also an offence.
The Dangerous Drugs Act, 1930, was enacted with a view to suppress
traffic in contraband and abuse of dangerous drugs, particularly derived
from opium, Indian hemp and coca leaf etc. The Act prescribed
maximum punishment of imprisonment for three years with or without C
fine, in so far as the first offence is concerned and for the second or
the subsequent offence the punishment could go up to four years' RI.
These Acts, however, failed to control illicit drug traffic and drug
abuse on the other hand exhibited an upward trend. New Drugs of
addiction known as psychotropic substances also appeared on the
scene posing serious problems. It was noticed that there was an absence D
of comprehensive law to enable effective control over psychotropic
substances in the manner envisaged by the International Convention
on Psychotropic Substances, 1971. The need for the enactment of
some comprehensive legislation on narcotic drugs and psychotropic
substances was, therefore, felt. Parliament with a view to meet a E
social challenge of great dimensions, enacted the NDPS Act, 1985 to
consolidate and amend existing provisions relating to control over
drug abuse etc. and to provide for enhanced penalities particularly for
trafficking and various other offences. The NDPS Act, 1985 Jlrovides
stringent penalties for various offence. Enhanced penalties are
prescribed for the second and subsequent offences. The NDPS Act, F
1985 was amended in 1988 w.e.f. 29.5.1989. Minimum punishment
of 10 years' imprisonment which may extend upto 20 and a minimum
fine of Rs. I lakh which may extend up to Rs. 2 lakhs have been
provided for most of the offences under the NDPS Act, 1985. For the
second and subsequent offences, minimum punishment of G
imprisonment is 15 years which may extend to 30 years while
minimum fine is Rs. 1.5 lakhs which may extend to Rs. 3 lakhs,
Section 31 {a) of the Act, which was inserted by the Amendment Act
of 1988, has even provided that for certain offences, after previous
convictions, death penalty shall be imposed, without leaving any
discretion in the court to award imprisonment for life in appropriate H
)-

58 SUPREME COURT REPORTS [2002] 3 S.C.R.

A cases. Another amendment of considerable importance introduced by
the Amendment Act, 1988 was that all the offences under the Act
were made triable by a Special Court. Section 3.6 of the Act provides
for constitution of Special Courts manned by a person who is a
Sessions Judge or an Additional Sessions Judge. Appeals from the
orders of the Special Courts lie to the High Court. Section 37 makes
B all the offences under the Act to be cognizable and non-bailable and
also lays down stringent conditions for grant of bail. However, despite
the stringent provisions of the NDPS Act, 1985 as amended in 1988
drug business is booming; addicts are rapidly rising; crime with its
role in narcotics is galloping and drug trafficking network is ever-
C growing. While interpreting various provisions of the statute, the object
of the legislation has to be kept in view but at the same time the
interpretation has to be reasonable and fair. "

After referring to host of judgments, the Constitution Bench of the Court held
that the provisions of Sections 42 and 50 are mandatory and their non
D compliance would render the investigation illegal. It was reiterated that severer
the punishment, greater the care to be taken to see that all the safeguards
provided in the statute are scrupulously followed. The safeguards mentioned
in Section 50 are intended to serve a dual purpose to protect the person ~
against false accusation and frivolous charges as also to lend credibility to the
E search and seizure conducted by the empowered officer. If the empowered
officer fails to comply with the requirements of the Section, the prosecution
is to suffer for the consequences. The legitimacy of the judicial process may
come under the cloud if the court is seen to condone acts of lawlessness
conducted by the investigating agency during search operations and may also
undermine respect for the law and may have the effect of unconscionably
F compro::nising the administration of justice.

In State of Punjab v. Balbir Singh, (1994] 3 SCC 299 it was held that
under Section 42 (2) the empowered officer who takes down any information
in writing or records the grounds under proviso to Section 42 (1) should
G forthwith send a copy thereof to his immediate official superior. If there is
a total non compliance of the provisions the same affects the prosecution
case. To that extent it is mandatory. To the same effect is fhe judgment in
Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat, (1995] 3
sec 610.
H In this case the violation of the mandatory provisions is writ large as
BECKODAN ABDUL RAHIMAN v. STATE OF KERAtA [SETHI, J.] 59

is evident from the statement of K.R. Premchandran (PW!). After recording A
the information, the witnesses is not shown to have complied with the mandate
of sub-section (2) of Section 42 of the Act. Similarly the provisions of Section
50 have not been complied with as the accused has not been given any option
as to whether he wanted to be searched in presence of a Gazetted Officer or
Magistrate. The compliance of Section 50 is held to have been fulfilled on
his (PW!) asking the accused "whether I should search him in the presence B
of senior officers or Gazetted officer". The accused was required to be apprised
of his right conferred under Section 50 giving him the option to search being
made in presence of gazetted officer or the Magistrate. The accused is not
shown to have been apprised of his right nor any option offered to him for
search being conducted in the presence of the Magistrate. C

We are of the firm opinion that the provisions of sub-section (2) of
Section· 42 and the mandate of Section 50 were not complied with by the
prosecution which rendered the case as not established. In view of the violation
of the mandatory provisions of the Act, the appellant was entitled to be
acquitted. Both the trial court as well as the High Court have failed to consider D
this aspect of the matter which warrants the setting aside of the impugned
judgment.

Under the circumstances the appeal is allowed by setting aside the
impugned judgment. The appellant is directed to set at liberty forthwith unless E
required in any other case.

K.K.T. Appeal allowed.

'