Namid Francis Nwazor vs Union of India (UOI) and Another

This petition is directed against the conviction of the petitioner under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Narcotic Drugs & Psychotropic Substances Act"). Such conviction has been affirmed on appeal by the High Court of Delhi. Notice was issued limited to the question of violation of the mandatory provisions of Section 50 of the Narcotic Drugs & Psychotropic Substances Act. Learned counsel for the appellant has submitted before us that although in Balbir Singh case ( State of Punjab Vs. Balbir Singh, , Section 50 of the Narcotic Drugs & Psychotropic Substances Act was considered in the context of a search of a "person" but the principle as to why such search should be made in the presence of a gazetted officer or a judicial magistrate to ensure sanctity to such search, has been elaborated in the said decision. The learned counsel has submitted that the same principle should also be made applicable in case of search of articles belonging to the accused or search of the premises or property belonging to or possessed by the accused. In support of such contention, reference has been made to a decision of a three-Judge Bench of this Court in Mohinder Kumar Vs. The State, Panaji, Goa, . It appears that in the said case, the person of the accused was searched and the bags found in the premises were also searched. Since such search had not been effected in the presence of a gazetted police officer or a magistrate as indicated in Section 50 of the Narcotic Drugs & Psychotropic Substances Act, this Court held that such search was illegal and, therefore, the accused was entitled to be acquitted for violating the mandatory provisions of Section 50. It, however, appears that in the said case, an argument was advanced that requirement for search of a person as indicated in Section 50 is also to be applied in case of search of premises or articles under the Narcotic Drugs & Psychotropic Substances Act. Moreover, in that case, apart from search of bags found in the premises, search of the person of the accused was also made. It may, however, be indicated that following the decision in State of Punjab Vs. Balbir Singh, it was held in the decision of Mohinder Kumar Vs. The State, Panaji, Goa, that for non-compliance of the mandatory provision of Section 50 of the Narcotic Drugs & Psychotropic Substances Act, the trial was vitiated thereby warranting acquittal of the accused.

Learned Additional Solicitor General, Mr. K.T.S. Tulsi has, however, submitted that even if the search was illegal, the recovery actually made in respect of a narcotic substance from such search is required to be considered. In support of such contention, he has referred to two decisions of this Court reported in State of Himachal Pradesh Vs. Shri Pirthi Chand and another, and State of Punjab Vs. Jasbir Singh and Others, In the said decisions, a Constitution Bench decision of this Court in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, has been taken into consideration. The learned Additional Solicitor General has submitted that unfortunately in State of Punjab Vs. Balbir Singh, the effect of the evidence flowing from the search even if such search was in violation of Section 50 of the Narcotic Drugs & Psychotropic Substances Act had not been taken into consideration. It is, therefore, necessary to consider the same in the light of decision made in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, and in the two subsequent decisions of this Court reported in State of Himachal Pradesh Vs. Shri Pirthi Chand and another, and State of Punjab Vs. Jasbir Singh and Others, .

Learned counsel for the petitioner has, however, relied on a decision of this Court in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, . In the said case, person of the accused was not searched because the accused himself took out the offending substance and handed over the same to the police. But search of the article belonging to the accused was effected. Relying on the decision in State of Punjab Vs. Balbir Singh, it has been held by this Court in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, that Section 50 of the Narcotic Drugs & Psychotropic Substances Act had been violated and, therefore, the accused was entitled to be acquitted. The decision in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, was also distinguished.

The learned Additional Solicitor General has, however, contended that in the decision in State of Punjab Vs. Balbir Singh, this Court has not considered the applicability of Section 50 in the matter of search of article or premises because Section 50 squarely applies to a case of search of person. Hence, reliance on State of Punjab Vs. Balbir Singh, was not called for in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, . That apart, the other question, namely, the implication of recovery of narcotic substance on account of the search even if the search was in violation of Section 50 of the Narcotic Drugs & Psychotropic Substances Act had not been gone into in State of Punjab Vs. Balbir Singh, . Learned Additional Solicitor General has submitted that observation appearing in para 8 of the judgment in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, about non-applicability of the decision in Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, requires reconsideration by a larger Bench in view of the contrary decisions reported in State of Himachal Pradesh Vs. Shri Pirthi Chand and another, and State of Punjab Vs. Balbir Singh, .

As it appears to us that the above contentions made in this case are of great public importance which are likely to have a bearing on a large number of cases under the Narcotic Drugs & Psychotropic Substances Act, we feel that this case should be referred to a larger bench consisting of more than three Judges to be constituted by the learned Chief Justice and we direct the matter to be placed before the learned Chief Justice.

It has been submitted before us by the learned counsel for the petitioner that the petitioner has been suffering imprisonment in terms of the conviction passed in the impugned judgment and ever since 23-6-1987 when he was arrested, he is undergoing detention. In the aforesaid facts, it is only desirable that this matter should be disposed of as early as practicable. We place such submission on record so that the Bench to be constituted by the learned Chief Justice may consider such submission for expeditious disposal of the matter, Court Masters