1. Unfortunately we had to proceed with this appeal without the help of arguments of the learned Counsel for the appellant as he has not turned up and there is nobody to represent him. But we found that appellant is languishing in jail and he had already covered substantial portion of the sentence of imprisonment imposed on him. If we adjourn this case further to another date it would be only to the detriment of the interest of the appellant. So, we heard learned Counsel for the respondent - State of Kerala who assisted us with the facts of this case also. We went through the various aspects concerning this case.
2. Before the trial Court there were 3 accused including the present appellant. All the 3 were indicted for an offence under Section 21 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act'). The trial Court acquitted the 3rd accused and convicted the other two of the said offence and sentenced both of them to undergo imprisonment for 10 years and to pay fine of Rs. 1,00,000/- each. Those convicted persons preferred an appeal before the High Court. A single Judge of the High Court allowed the appeal filed by the 2nd accused and acquitted him but confirmed the conviction and sentence the appellant. Hence this appeal by special leave.
3. The facts lie in a narrow compass. P.W. 1, Circle Inspector Police received information that certain persons were on the move in an auto-rickshaw carrying brown sugar. He therefore, went in search of the auto-rickshaw and came across the same. He stopped the vehicle and found the appellant and two other persons sitting on the seat. When appellant was searched he was found carrying a bag in which 300 grams of brown sugar had been detected. Two other bags kept close to him were also seized and those bags also contained brown sugar. Further facts of the case are not necessary for disposal of this appeal.
4. It is admitted by PW-1 that appellant was not informed that he has a right of being searched in the presence of a Gazetted Officer or a Magistrate. When PW-1 was confronted with this aspect he said that appellant did not make a demand that search should be conducted in the presence of a Gazetted Officer or a Magistrate. Learned single Judge of the High Court relied on the decision of this Court in State of Punjab v. Balbir Singh, for holding that the requirements of Section 50 of the Act are not mandatory and non-compliance therewith would not vitiate the search. Learned Judge further held that there was no question of non-compliance with Section 50 of the Act in this case inasmuch as the appellant did not make a request on his own that the search should be conducted in the presence of a Gazetted Officer or a Magistrate.
5. The legal position has since been changed with the pronouncement of the decision of the Constitution Bench of this Court in State of Punjab v. Baldev Singh, . It has been held that a search conducted in violation of Section 50 of the Act would vitiate the search and prejudice would be caused to the accused if the requirements are not complied with.
6. The dictum in Balbir Singh has been explained away by the Constitution Bench. In a case where the Searching Officer failed to communicate to the accused, who was subjected to search, that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate there would be noncompliance with the requirement of Section 50. Merely for the reason that the accused did not make a request to the Searching Officer on his own that the search should be conducted in the presence of such officer it cannot be held that there was no need to inform him of that right.
7. In view of the change in the legal position with the pronouncement of the Constitution Bench decision in the aforesaid case the search conducted in this case must be held to have been vitiated. Consequently, it must be inferred that prejudice has been caused to the accused. The evidence concerning the search is not acceptable in view of non-compliance with the requirements of Section 50. There is no other evidence, apart from the search, to prove that appellant was in possession of the forbidden article. As such we are unable to sustain the conviction and sentence passed by the trial Court which were confirmed by the High Court.
8. In the result we allow this appeal and set aside the conviction and sentence passed on the appellant. We acquit him and direct the jail authorities to set him free unless he is required in any other case.