The appellant was not informed about his legal right (to conduct searches in the presence of a gazetted officer or magistrate)

* Man convicted in NDPS case acquitted after 17 years, Uttarakhand HC says non-compliance of Section 50 is sufficient to warrant acquittal The Uttarakhand High Court, while acquitting a man convicted in 2005 under the NDPS Act, said that non-compliance of Section 50 of the Act makes a sufficient case for acquittal.     The appellant was not informed about his legal right (to conduct searches in the presence of a gazetted officer or magistrate), hence non-compliance of Section 50 of the Act, 1985 makes a sufficient case for acquittal, Justice Alok Kumar Verma said. The judgment was passed by special sessions judge, Champawat in 2005 on an appeal against the conviction of the accused.  The accused were sentenced to 10 years rigorous imprisonment and a fine of Rs 1 lakh under Section 20 read with Section 18 of the NDPS Act for possessing one kg of charas.       Amicus curiae Sandeep Adhikari told the court that the accused was not informed about his right to be searched by the search officer in the presence of a gazetted officer or magistrate, as mandated under Section 50 of the Act.    Fact: The appellant was apprehended on suspicion when he was coming from Nepal. According to the prosecution, the sub-inspector told him that he had to be frisked in the presence of a magistrate or gazetted officer, and asked if he wanted to go to any of them for a search. The appellant is said to have replied that he had full faith in the sub-inspector. During the search, charas were recovered from his pajamas.     The appellant accused in the case did not submit any defence.  The high court held that the accused was not informed about his legal right to conduct searches in the presence of a gazetted officer or a magistrate.  The court said he was told that he could be searched before a magistrate or a gazetted officer if he so desired.       The court said Section 50 places the duty on the empowered authorities to inform the suspect about his right to search in the presence of a gazetted officer or magistrate.    The Court referred to Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 in which the Supreme Court held that, For purposes such as preventing abuse of power, protecting innocent persons and protection from fabricating false cases or framing of any person etc. by law enforcement agencies, the suspect shall be arrested under Section 50(1) of the NDPS Act,  For the authority conferred, it is mandatory for the empowered officer to inform the person who is being searched that he has the authority to be searched before a gazetted officer or magistrate.       We have no hesitation in holding that as far as the liability of an authorised officer under sub-section (1) of section 50 of the NDPS Act is concerned, it is mandatory.It is and requires strict compliance.       Failure to comply with the provision will make the recovery of the illegal object suspicious and contaminate the conviction if it has been recorded only on the basis of recovery of the illegal object from the person of the accused during such search. The court said that it is well established that when the law provides for the act to be done in a particular manner, it essentially prohibits doing that work in any other manner.     In the light of the above, the appeal was allowed and the sentence passed by the Special Sessions Judge, Champawat was set aside.  Case Title: Devendra Singh Malik vs State of Uttarakhand

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