1. The sole accused in S.C.No.2/2007 on the files of the Special Court under the Narcotic Drugs and Psychotropic Substances Act (`NDPS Act’ for short hereafter), Vadakara, has filed his appeal challenging the verdict in the above case dated 27.09.2007.

2. Heard the learned counsel for the appellant/accused as well as the learned Public Prosecutor appearing for the State. Gone through the verdict impugned and the records available.

3. In this matter, prosecution alleges commission of offence punishable under Section 20(b)(ii)((B) of the NDPS Act by the appellant/accused and the allegation of the prosecution is that at about 16.50 hours on 02.04.2006 the appellant/accused was found in possession of 1.20 kilogram of ganja near the compound wall of the house “Chaithram” bearing No.4/701 situated in Menhanniam amsom desom of Perambra Panchayat.

4. On evaluation of the evidence, the learned Special Judge found commission of the offence punishable under Section 20(b)(ii)(B) of NDPS Act by the appellant/accused and he was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.20,000/-. In default of payment of fine, rigorous imprisonment for 6 months also was imposed.

5. The main challenge raised by the learned counsel for the appellant/accused is that non compliance of Section 50 of the NDPS Act which would vitiate the entire prosecution case. The further allegation is that the information received which led to registration of Ext.P1 was not specific regarding the place of occurrence. As regards to Ext.P2 consent letter alleged to be given by the appellant/accused to the Investigating Officer, it is contended that Ext.P2 is a document created for the purpose of search. Thus the learned counsel for the accused canvassed interference in the impugned verdict.

6. Whereas the learned Public Prosecutor fully supported the prosecution case, while submitting that none of the contentions raised by the learned counsel for the appellant/accused would sustain to upset the verdict impugned.

7. Insofar as non compliance of Section 50 of the NDPS Act, the Special Court considered the same in paragraph 11 of the verdict impugned and held that as per Ext.P2 consent letter the accused waived his right to be searched in the presence of Magistrate or Gazetted Officer. Thus it was held that there was sufficient compliance of Section 50 of the NDPS Act.

8. Thus the points to be discussed are:

                  (i) Whether the Special Court is right in holding that the accused committed the offence punishable under Section 20(b)(ii)(B) of NDPS Act?

                  (ii) Whether there is non compliance of Section 50 of NDPS Act as alleged by the appellant/accused?

                  (iii) Whether Ext.P2, the consent given by the appellant/accused is sufficient to find the mandate of Section 50 of the NDPS Act?

                  (iv) Is it necessary to interfere with the impugned judgment in any manner?

                  (v) The order to be passed?

Point Nos.(i) to (v)

9. First of all, it is relevant to refer Section 50 of the NDPS Act, which reads as under:

                  “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 without unnecessary delay to the nearest Gazette Officer of 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 to in subsection (1).

                  (3) The Gazette Officer or the Magistrate before whom any such 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.

                  (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazette Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

                  (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.”

10. The mandate of Section 50 is clear from the legislative intent itself that, 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 without unnecessary delay to the Magistrate or nearest Gazette Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. So it is discernible from the phraseology of the Section that for search of a person, Section 50 to be complied and if search is otherwise, Section 50 has no application. In this connection a recent decision of the Apex Court reported in [2023 KHC OnLine 6891 : 2023 KHC 6891 :2023 (6) KHC SN 34 :2023 (2) KLD 625 :2023 INSC 878 : 2023 LiveLaw (SC) 856 :2023 SCC OnLine SC 1262 :2023 (4) KLJ 918 : 2023 KLT OnLine 1988 :AIR 2023 SC 5164 :AIR OnLine 2023 SC 818 : 2024 (1) KLT SN 212023 KHC 6891], Ranjan Kumar Chadha v. State of Himachal Pradesh, is having relevance where the Apex Court considered the impact of Section 50 of the NDPS Act with reference to earlier judicial pronouncements and finally held that any recovery made from source other than the body would not warrant compliance of Section 50 of the NDPS Act and non-compliance necessarily is of no significance in such cases. In Ranjan Kumar Chadha‘s case (supra), referring the Constitution Bench decision in [1999 (3) KLT SN 4 :1999 (6) SCC 172 :AIR 1999 SC 2378 :1999 CriLJ 3672] State of Punjab v. Baldev, in paragraph No.49 it has been held as under:

                  “49. Thus, the Constitutional Bench in express terms laid down that although the non- compliance of S.50 may not vitiate the trial yet would render the recovery of the contraband doubtful and may vitiate the conviction of the accused. The emphasis laid by the Court is on illicit articles seized from the "person of an accused" during the search conducted in violation of safeguards provided in S.50 of the NDPS Act. In other words, according to Baldev Singh (supra), the provisions of S.50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.”

                  It was held in paragraphs 63, 64 and 97 as under:

                  “63. However, we propose to put an end to all speculations and debate on this issue of the suspect being apprised by the empowered officer of his right under S.50 of the NDPS Act to be searched before a Gazetted Officer or Magistrate. We are of the view that even in cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even If the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that "I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance withS.50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted officer or Magistrate and I may be searched by the empowered officer." This would lend more credence to the compliance of S.50 of the NDPS Act. In other words, it would impart authenticity, transparency and credit worthiness to the entire proceedings. We clarify that this compliance shall henceforth apply prospectively.

                  64. From the aforesaid discussion, the requirements envisaged by S.50 can besummarised as follows: -(i) S.50 provides both a right as well as an obligation. The person about to be searched has the right to have his search conducted in the presence of a Gazetted Officer or Magistrate if he so desires, and it is the obligation of the police officer to inform such person of this right before proceeding to search the person of the suspect. (ii) Where, the person to be searched declines to exercise this right, the police officer shall be free to proceed with the search. However, if the suspect declines to exercise his right of being searched before a Gazetted Officer or Magistrate, the empowered officer should take it in writing from the suspect that he would not like to exercise his right of being searched before a Gazetted Officer or Magistrate and he may be searched by the empowered officer.(iii) Before conducting a search, it must be communicated in clear terms though it need not be in writing and is permissible to convey orally, that the suspect has a right of being searched by a Gazetted Officer or Magistrate.(iv) While informing the right, only two options of either being searched in presence of a Gazetted Officer or Magistrate must be given, who also must be independent and in no way connected to the raiding party.(v) In case of multiple persons to be searched, each of them has to be individually communicated of their right, and each must exercise or waive the same in their own capacity. Any joint or common communication of this right would be in violation of S.50.

                  ……………

                   97. Accordingly, S.50 was read to be understood as applicable only to the personalsearch of a person and that would not extend to search of a vehicle or a container or a bag. The language of S.50 was interpreted to include search in relation to a person and not to a search of premises, vehicles or articles.”

11. In the instant case, as found by the learned Special Judge, as per Ext.P2 tendered in evidence through PW1, the accused waived the right to be searched before a Gazetted officer or a Magistrate. Therefore, the contention as to non-compliance of Section 50 mooted by the learned counsel for the appellant/accused is found to be unsustainable.

12. Learned Public Prosecutor vehemently supported the verdict and submitted that in the instant case even though the recovery was from the plastic bag, found in the black belt worn by the accused, akin to search of a person as per Ext.P2, the accused voluntarily waived right to be examined before a Magistrate or a Gazetted officer and therefore compliance of Section 50 has no significance. He also argued that Ext.P1 is the report U/s 42 of NDPS Act, on getting information regarding possession of the contraband from the appellant/accused. Therefore, there is no necessity to fabricate the same. Therefore, the verdict is liable to be confirmed.

13. In this case the detecting officer is PW1. His version is that while he was working as the Sub Inspector of Police, Perambra at about 16.30 hours on 02.04.2006, he had received an information that a person engaged in sale of ganja in Velliyodankandi colony road near the house of Vasudevan. Soon he had prepared Ext.P1 report under Section 42 of NDPS Act and informed the same to his superior official. Thereafter he had reached the place of occurrence and informed the appellant/accused regarding right to be searched on his body in the presence of a Magistrate or a Gazetted officer. He had informed that the said requirement was not necessary and he agreed for search in the absence of a Magistrate or gazetted officer by giving consent in writing. Ext.P2 is the consent letter tendered in evidence by PW1. There after the accused was searched on his body and on search it was found that some small packets were kept in a plastic bag on the black belt worn by the accused and it was examined. It was found that the same were dried ganja. On weighing the same it was found as having 1.120g and out of which 10 gram sample was taken and sealed and for which Ext.P3 mahazar was prepared. Accordingly, the appellant/accused was arrested and Ext.P4 final report alleging commission of offence punishable under Section 20(b)(ii)((B) of the NDPS Act was registered. Ext.P5 inspection memo was also tendered in evidence through him. He also identified M.O1 series as 2 numbers of packets after chemical examination and also M.O2 as the remaining ganja seized from the physical possession of the appellant/accused. M.O3 identified as the plastic cover used for storing ganja by the accused. M.O4 identified as the belt worn by accused and pockets where the plastic cover containing ganja was kept. M.O5 plastic cover used to tie the plastic cover. He also stated that 900 rupees were recovered from the accused.

14. During cross-examination, PW1 deposed that he had been informed of the incident over the telephone by the Dy.S.P., Narcotic Cell, Vatakara, and that the information had been entered in the General Diary (G.D.), although the same was not mentioned in the seizure mahazar or the FIR. Thereafter, the matter was followed up by the Circle Inspector of Police. PW1 also reiterated that he had forwarded Ext.P1 report to the Circle Inspector of Police

15. PW2 fully supported the version of PW1 and nothing extracted during cross examination of PW2 to shake his version. As regards to compliance of Section 50 of the NDPS Act, 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 without unnecessary delay to nearest Gazetted Officer or to a Magistrate. In the decisions reported in [(1999) 6 SCC 172], State of Punjab v. Baldev Singh and [(2011) 1 SCC 609], Vijaysinh Chandubha Jadeja v. State of Gujarat, the Apex Court held that the authorised officer has an obligation to take a person to the nearest gazetted officer or to a Magistrate.

16. In Baldev Singh’s case (supra), the Supreme Court had left open the issue of whether the obligation of the authorized officer to inform the suspect of his right to be searched in presence of a magistrate or Gazetted officer was directory or mandatory, but the issue was settled by a constitution bench of the apex court in Vijaysinh Chandubha Jadeja’s case (supra). In the latter judgment, it was held as under:

                  "We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search.Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.

                  We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

                  In Arif Khan @ Agha Khan, the Additional Sessions Judge and High Court had both held that the suspect/accused had been informed of his legal right to be searched in presence of the magistrate or Gazetted officer, which was declined by him in writing, and therefore there was compliance with section 50 of the NDPS Act. The conviction of the accused, which was based on the search carried out by the authorised officer under section 50, was therefore held to be justified.”

17. The matter had earlier been authoritatively settled by another five-Judge Bench of the Apex Court in Vijaysinh Chandubha Jadeja v. State of Gujarat (supra) where the Apex Court considered the question as under:

                  “The question that arose before the Supreme Court was whether Section 50, NDPS Act casts a duty on the empowered officer to "inform" the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of the Section 50?”

                  While answering the question. The Apex Court held as under:

                  “It is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.

                  The concept of "substantial compliance" is neither borne out from the language of Section 50(1) nor it is in consonance with the law laid down in Baldev Singh case, (1999) 6 SCC 172.

                  The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so.

                  Failure to "inform" the suspect about the existence of his said right would cause prejudice to him. Failure to comply with Section 50 would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Any other interpretation of the provision would b make the valuable right conferred on the suspect illusory and a farce.

                  In order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the legislature have to be observed strictly. The object of Section 50(1), NDPS Act is to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies.

                  The insertion of sub-sections (5) and (6) in Section 50 does not obliterate the mandate of Section 50(1) to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate.

                  Although by the insertion of sub-sections (5) and (6) in Section 50 by Act 9 of 2001, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub-sections, even in such cases a safeguard against any arbitrary use of power has been provided under sub-section (6).

                  The flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, Section 50(6) makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of Section 50(5), to his immediate superior officer, within the stipulated time, which b exercise would again be subjected to judicial scrutiny during the course of trial.

                  Though Section 50 gives an option to the empowered officer to take such d person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.”

18. The law emerges from the decisions in that Baldev Singh’s case (supra), Vijaysinh Chandubha Jadeja v. State of Gujarat (supra) and in Ranjan Kumar Chadha‘s case (supra) is that, it is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. In cases wherein the suspect waives such right by electing to be searched by the empowered officer, such waiver on the part of the suspect should be reduced into writing by the empowered officer. To put it in other words, even if the suspect says that he would not like to be searched before a Gazetted Officer or Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in presence of the empowered officer as well as the other officials of the squad that "I was apprised of my right to be searched before a Gazetted Officer or Magistrate in accordance with S.50 of the NDPS Act, however, I declare on my own free will and volition that I would not like to exercise my right of being searched before a Gazetted officer or Magistrate and I may be searched by the empowered officer." This would lend more credence to the compliance of S.50 of the NDPS Act.

19. It is submitted by the learned counsel for the appellant/accused that, even though in Ext.P2, the right to be searched before the Magistrate or a Gazetted Officer is there, the same could not find a place in Exts.P3 and P4, i.e. seizure mahazar and F.I.R. In fact, the said contention could not be justified in view of the categorical wordings in Ext.P2 that, the accused was searched in the absence of gazetted officer or a Magistrate as he had relinquished the said right as per Ext.P2. Further Exts.P3 and P4 would show the fundamental essentials of search. It is argued by the learned counsel for the appellant/accused further that, the Ganja was weighed along with the wrapper used to wrap the same, and therefore, the quantity of Ganja would be less than intermediate quantity. In view of this submission, when the evidence of PW1 is perused, the same would categorically show that the measurement of Ganja was taken after removing the wrap and the Ganja alone was measured. Therefore, the said contention also must fail.

20. Regarding non compliance of Section 42 by the detecting officer is concerned, the same also found to be not acceptable, as there is compliance of Section 42, as found from the evidence of PW1.

21. Coming back, Ext.P2 would suggest that after getting due information given by the Investigating Officer to the accused regarding his right to be searched before a gazetted officer or a Magistrate, the accused waived his right and put the same in writing with his signature. Thus, in the instant case, the accused voluntarily relinquished his right insofar as his body search in the presence of a gazetted officer or a Magistrate. Therefore, Section 50 of the NDPS Act found to be sufficiently complied.

22. Ext. P3 seizure mahazar was admitted by PW3 as attestor to the same and according to him, the scene of incident was on the west of his house and he was proceeding to Perambra town at the relevant time. According to PW3, he signed Ext.P3 mahazar pertaining to seizure of ganja from the accused and he had understood the same even at the time of putting his signature. Further PW3 admitted that the label affixed on M.O2 also contained his signature and it was put at the time of seizure on the spot. During cross examination, he stated that the police had not threatened or intimidated him for putting the signature. PW4, who is an attestor to Ext. P7 scene mahazar, also admitted his signature therein. According to PW4, scene of incident was in front of the house of Vasudevan doctor. PW5 is the then Village Officer of Menhanniam, who prepared Ext. P8 site plan. PW6 is the then Circle Inspector of Police Perambra, who conducted part of the investigation. Ext. P9 is the chemical analysis report which would show that the sample of contraband seized and forwarded to the FSL for analysis was ganja (cannabis sativa). PW7 is another Circle Inspector of Police Perambra, who conducted investigation. According to PW7 also, the seal affixed on the sample was S.H.O. seal. Although PW7 was cross examined in detail, nothing could be brought out to shake his version to make it as not reliable.

23. To sum up, through the evidence of PW1 and PW2, recovery of M.O1 series and M.O2 ganja along with M.O3 and M.O4 is proved by the prosecution without any reasonable doubt. Therefore, the learned Special Judge is right in finding that the appellant/accused committed the offence punishable under Section 20(b)(ii)((B) of the NDPS Act. In such a case, the conviction doesn’t require any interference and the same is confirmed.

24. Coming to the sentence, the learned Special Judge imposed rigorous imprisonment for a period of two years and fine of Rs.20,000/- and in default of payment of fine, rigorous imprisonment for a period of six months. Having regard to the submission made by the learned counsel for the appellant seeking leniency in the matter of sentence, I am inclined to reduce the substantive sentence from two years to eighteen months, while maintaining the fine and the default sentence unaltered.

25. The substantive sentence shall run concurrently and default sentence shall run separately.

26. In the result, the appeal is allowed in part as above.

27. The order suspending sentence and granting bail to the accused stands cancelled and the bail bond also stands cancelled.

Registry is directed to forward a copy of this judgment to the Special Court under the NDPS Act, Vadakara, for compliance and further steps.