If the recovery was not from the person but from a bag carried by him, the procedure formalities prescribed under Section 50 of the NDPS Act would not Apply: SC

While setting aside the May 23, 2023, Kerala High Court judgment acquitting an accused in a narcotics case, the Supreme Court (SC) of India observed that Section 50 of the Narcotics Drugs and Psychotropic Substances Act (NDPS Act) applies only to personal searches and not to searches of bags carried by the person being searched. Section 50 of the NDPS Act deals with the ‘Conditions under which search of persons shall be conducted’. The bench constituting Justice CT Ravikumar and Justice Sanjay Karol, in the recent order, said, “the exposition of law on the question regarding the requirement of compliance with Section 50 of the NDPS Act is no more res integra and this Court in unambiguous term held that if the recovery was not from the person and whereas from a bag carried by him, the procedure formalities prescribed under Section 50 of the NDPS Act was not required to be complied with.” 

The case was detected on January 10, 2019, during patrol duty by the Excise Inspector and his party. They found the respondent with a bag containing 2.050 Kilograms of Ganja. Considering this, the respondent was charged under Section 20(b)(ii)(B) of the NDPS Act. Initially, the matter was heard by the trial court that acquitted the respondent stating that “...the prosecution had succeeded in proving the guilt against the respondent and convicted him under Section 20(b)(ii)(B) of the NDPS Act and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.50,000/-. In default of payment of fine, he was ordered to undergo rigorous imprisonment for six months.” Aggrieved by the decision, the respondent approached the High Court. The judgment of conviction was interfered with and reversed by the HC on the grounds of failure to comply with the formalities prescribed under Section 50 of the NDPS Act rendered the search and seizure illegal.

During the proceedings, the Appellant State contented that the reasoning of the HC for reversing the conviction of the respondent and acquitting him that the mandatory formalities provided under Section 50 of the Act were not complied with and thereby the search and seizure were rendered illegal is contrary to the law laid down by this Court in view of the indisputable factual position that the contraband was recovered from the bag in possession of the respondent. After hearing the contentions, the SC held that “...the impugned judgment cannot be sustained and it requires interference. Accordingly, the impugned judgment whereunder the respondent was acquitted stands set aside and as a necessary sequel we restore the judgment of the Trial Court to the extent it found guilty the respondent under Section 20(b)(ii)(B) of the NDPS Act.” Following this, the Amicus Curiae who appeared for the respondent submitted that the respondent had undergone 4 years, 4 months, and 21 days of incarceration pursuant to the order of conviction. He added, “A perusal of Section 20(b)(ii)(B) of the NDPS Act would reveal that no minimum sentence is prescribed thereunder though it provides that an imprisonment may extend to ten years and with fine which may extend to rupees one lakh.” 

The SC said that “...after reversing the judgment of acquittal and restoring the judgment of conviction imposed on the respondent by the Trial Court, the corporeal sentence for the conviction under Section 20(b)(ii)(B) of the NDPS Act can be confined to the period of corporeal sentence already undergone by the respondent.” It added, “...for effecting payment of fine viz., Rs.50,000/- we grant 30 days time from today to the respondent. However, we make it clear that in case of failure on the part of the respondent in effecting payment of the fine of Rs.50,000/-, within the stipulated time, he shall undergo the default sentence imposed upon him by the Trial Court as per its judgment.”