C. Ali vs State of Kerala

The appellant has been convicted for the offence punishable u/s 21 of the NDPS Act, 1985 and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh.

The appellant had contended before the High Court that the mandatory requirement of Section 50 of the Act was not complied with in this case. We do not find any clear finding recorded by the High Court on this point. As the deposition of the Circle Police Inspector (P.W. 5) was recorded in Malayalam language, we told learned Counsel for both the parties to verify and tell us whether he had stated in his evidence that the appellant was informed about his right to be searched in presence of a Magistrate or a Gazetted Officer. After going through his evidence, both the learned Counsel stated that the evidence of the witness is silent on this point. The settled position of law is that the person to be searched under the N.D. P.S. Act, 1995 is required to be told about his right u/s 50 before he is searched and that is a mandatory requirement. No presumption to that effect can be raised. As there is no evidence on record to show that the appellant was informed about his said right, it has to be held that the said mandatory requirement of Section 50 was not complied with in this case. On this short point, this appeal deserves to be allowed. Accordingly, we allow this appeal, set aside the conviction of the appellant and also quash the order of sentence passed against him.