Non-compliance with Mandatory NDPS Act Section 50 Leads to Acquittal
In a significant ruling, the Bombay High Court (Goa Bench), presided over by Justice Shreeram V. Shirsat, acquitted Mr. Joseph Achola Ouma, a Kenyan national, who was previously convicted by the Additional Sessions Court, South Goa, under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The acquittal was primarily due to the non-compliance with the mandatory procedural requirements under Section 50 of the NDPS Act.
Mr. Ouma was arrested in 2019 after a narcotic raid led by PSI Damodar Shirodkar, which resulted in the recovery of substances suspected to be cocaine and LSD from his possession. He was subsequently convicted for offenses under Sections 21(b) and 22(c) of the NDPS Act, receiving a total of 15 years of rigorous imprisonment and fines amounting to Rs. 1,50,000.
The appeal filed by Mr. Ouma challenged the conviction on several grounds, notably the failure of the raiding team to comply with Section 50 of the NDPS Act. This section mandates that individuals must be informed of their right to be searched in the presence of a Magistrate or an independent Gazetted Officer. The court found that Mr. Ouma was only informed of the option to be searched before a Gazetted Officer, who was part of the raiding team, thus violating the statutory requirement.
Justice Shirsat emphasized that the right to be searched before an independent officer is a crucial safeguard to prevent misuse of power and ensure fairness. The judgment highlighted the importance of strict adherence to legal procedures, especially under the NDPS Act, given the severe penalties involved.
The court noted that the procedural lapse in not offering the choice of a Magistrate compromised the integrity of the search and rendered the evidence inadmissible. Consequently, the conviction could not be sustained, leading to Mr. Ouma's acquittal. The judgment also instructed Mr. Ouma to execute a bond for future appearances should an appeal be filed against this acquittal.
This ruling underscores the judiciary's commitment to upholding procedural safeguards and ensuring justice, particularly in cases involving stringent laws like the NDPS Act.
Bottom Line:
Narcotic Drugs and Psychotropic Substances Act, 1985 - Mandatory compliance with Section 50 is imperative - Failure to inform the accused about the option to be searched in the presence of a Magistrate or an independent Gazetted Officer renders the search illegal.
Statutory provision(s): Narcotic Drugs and Psychotropic Substances Act, 1985 Section 50, Bharatiya Nagarik Suraksha Sanhita, 2023 Section 481, Corresponding to Section 437A of Cr.P.C.
Mr. Joseph Achola Ouma v. State of Goa, (Bombay)(Goa Bench) : Law Finder Doc id # 2840642
