BECKODAN ABDUL RAHIMAN versus STATE OF KERALA

Citation: [2002] 3 S.C.R. 53 · Decided: 16-04-2002 · Supreme Court of India · Bench: R.P. SETHI · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

., 
BECKODAN ABDUL RAHIMAN 
v. 
STATE OF KERALA 
APRIL 16, 2002 
[R.P. SETHI AND D.M. DHARMADHIKARI, JJ.] 
Narcotic Drugs and Psychotropic Substances Act, 1985-Sections 42(2) 
and 50-Mandatory provisions-Non-compliance-Effect of-Held, in view of 
A 
B 
the violation of mandatory provisions accused entitled to be acquitted. 
C 
Accused-appellant was prosecuted under Sections 9(c) r/w Section 18 
of Narcotic Drugs and Psychotropic Substances Act, 1985. Prosecution case 
was that PW-I after recording information, searched the accused in presence 
of witness and found him in possession of opium. When the accused was 
inquired as to whether he would like to meet any higher official or Gazetted D 
Officer he replied in negative. He was convicted and sentenced for the offence 
by trial court and in appeal the conviction and sentence was upheld. 
In appeal to this Court appellant assailed the impugned judgment on 
the ground of violation of provisions of Sections 42(2) and 50 of the Act. 
Allowing the appeal, the Court 
HELD : 1.1. The mandatory provisions of sub-sections (2) of Section 
E 
42 and Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 
1985 were not complied with by the prosecution which rendered the case as F 
not established. Hence, the appellant is entitled to be acquitted. [59-C-D] 
1.2. In the instant case violation of the mandatory provisions is writ 
large, as PWI had not complied with the mandate of sub-section (2) of Section 
42 of the Act. Similarly, the provisions of Section 50 have not been complied 
with as the accused has not been given any option as to whether he wanted G 
to be searched in presence of a Gazetted Officer or Magistrate. The accused 
was required to be apprised of his right conferred under Section 50 giving 
him the option to search being made in the presence of Gazetted Officer or 
Magistrate. The accused is not shown to have been apprised of his right nor 
any option offered to him for search being conducted in the presence of the 
53 
H 
54 
SUPREME COURT REPORTS 
[2002) 3 S.C.R. 
A Magistrate. [58-H; 59-A-B] 
B 
c 
D 
E 
F 
G 
H 
State of Punjab'v. Baldev Singh, [1999) 6 SCC 172; State of Punjab v. 
Balbir Singh, [lJ94] 3 SCC 299 and Saiyad Mohd Saiyad Umar Saiyad and 
Ors. v. State of Gujarat, [1995) 3 SCC 610, referred to. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
619 of 1997. 
From the Judgment and Order dated 17.3.1995 of the Kerala High 
Court in Crl. A.No. 290 of 1992. 
T.N. Singh (N.P.) for the Appellant. 
Ramesh Babu M.R. for the Respondent. 
The Judgment of the Court was delivered by 
SETHI, J. For allegedly possessing 11 gms. of opium without licence, 
the appellant has been convicted under Section 9 (c) read with Section 18 of 
the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred 
to as "the Act"). He has been sentenced to undergo rigorous imprisonment 
for 10 years and to pay a fine of Rs. 1 lakh and in default of payment of fine 
to suffer further rigorous imprisonment for six months. It is stated at the Bar 
that the appellant has already undergone sentence of about 8 years. 
No-one has appeared for the appellant. From the memo of the appeal 
it is found that the conviction and sentence awarded to the appellant has been 
assailed mainly on the ground of violation of the provisions of Sections 42 
and 50 of the Act.· The learned counsel, appearing for the respondent-State 
has, however, contended that as there was substantive compliance of the 
provisions of the Act, no interference is called for. 
According to the prosecution, the Sub Inspector of Police received a 
telephonic message on 6.10.1990 at about 8.30 A.M. that narcotic drugs were 
being sold at T.C. Junction. He recorded the information in the general diary 
and proceeded to the scene of occurrence in a jeep. On reaching T.C. Junction 
at about 8. 45 A.M. he saw the accused carelessly walking from the bus 
shelter towards Kathu Parambu side. Allegedly seeing him in suspicious 
condition, the Sub Inspector along with his party approached him and after 
disclosing his identity searched the person of the accused in presence of 
witnesses. It was found that inside the fold of Dhoti, which the appellant was 
' )·--. 
.....,.. '
)"-
). 
. . __( 
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BECKODAN ABDUL RAHIMAN v. STATE OF KERALA [SETHI, J.] 
55 
wearing, opium had been concealed in a polythene bag. As he was found A 
unauthorisedly possessing the opium, he was arrested and the opium seized 
was w

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