T. HAMZA versus STATE OF KERALA

Citation: [1999] SUPP. 1 S.C.R. 343 · Decided: 11-08-1999 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Appeal(s) allowed
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Judgment (excerpt)

T. HAMZA 
v. 
ST A TE OF KERALA 
AUGUST l l, 1999 
[K.T. THOMAS AND D.P. MOHAPATRA, JJ.] 
Criminal Law: 
Narcotic Drugs and Psychotropic Substances Act, 1985: 
Section 50(1)-Non-compliance of-Before search and seizure-
Accused found in possession of contraband article as a result of search of 
his person-Provisions of S.50(1) not complied with-No other evidence in 
support of the charge-Effect-Held, in the circumstances of the case, judgment 
and order of conviction, clearly unsustainable. 
The appellant-accused was convicted under Section 21 of the Narcotic 
Drugs and Psychotropic Substances Act, 1985 by the Sessions Court. The 
High Court upheld the conviction. Hence this appeal. 
A 
B 
c 
D 
According to the prosecution, having received the information that the 
appellant-accused was selling brown sugar, Police went to the scene of E 
occurrence and on searching the accused found brown sugar in his possession. 
On behalf of the accused it was contended that the mandatory 
requirements prescribed under Section 50(1) of the Act were not complied 
with and, therefore, the conviction of the accused is unsustainable. 
Allowing the appeal, this Court 
HELD : 1. The Narcotic Drugs and Psychotropic Substances Act, 1985 
provides a reasonable safeguard to the accused before a search of his person 
is made by an officer authorised under Section 42 to make it. The provision 
F 
is also intended to avoid criticism of arbitrary and high handed action G 
against authorised officers. The Legislature in its wisdom considered it 
necessary to provide such a statutory safeguard to lend credibility to the 
procedure keeping in view the severe punishment prescribed in the statute. 
(344-E; 346-A-BJ 
2. There was no compliance of the provisions of Section 50(1) of the H 
343 
• 
344 
SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R. 
A Act before the search and seizure in this case were effected. Therefore, the 
search and seizure thus effected cannot be relied upon by the prosecution. 
The prosecution case of illegal possession of the contraband article is based 
entirely on the search of the person of the accused leading to recovery of 
the article and there is no other evidence in support of the charge. Therefore, 
B the judgment and order of conviction against the appellant by the Sessions 
Court, which was confirmed by the High Court, is clearly unsustainable. 
(350-B-D) 
c 
D 
State of Punjab v. Baldev Singh, JT (1999) 4 SC 595, followed. 
State of Punjab v. Balbir Singh, JT (1994) 2 SC 108, held inapplicable. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
798of1997. 
From the Judgment and Order dated 1.9.95 of the Kerala High Court in 
Cr!. A. No. 243 or 1993. 
Somnath Mukherjee, (A. C.) for the Appellant. 
K.M.K. Nair for the Respondent. 
The Judgment of the Court was delivered by 
E 
D.P. MOHAPATRA, J. This appeal filed by the accused in Sessions 
case No. I 00/90 of the Court of Sessions Kozhikode Division, is directed 
against the Judgment and order of conviction and sentence u/s 21 of the 
Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ' the NDPS 
Act'), and sentence of I 0 years R.I. and a fine of Rs. I lakh, which was 
F confirmed in 'appeal by the High Court of Kerala with slight modification 
regarding the default sentence which was reduced from 2 years to l year R.I. 
The charge against the appellant was that on 18.7.1990 at 6.05 P.M. he 
was found in possession of 1750 milligram of brown sugar at AKG Memorial 
over-bridge at Francis Road in, Nagaram, in violation of the provisions of the 
G NDPS Act and thereby committed an offence punishable u/s 21 of the NDPS 
Act. 
The case of the prosecution, shortly stated is that the sub-inspector of 
police, Chemmangad Police Station, having received information that the 
accused was selling brown sugar went along with two constables PW2 and 
· H CW2 to the scene of occurrence. On searching the accused nine small poly-
I. 
' 
/ 
T. HAMZA v. STATE OF KERALA [D.P. MOHAPATRA, J.) 
345 
thene bags containing brown sugar were found in his possession. The articles A 
were seized. The articles were found on weighing as 1750 milligram. After 
completing the procedural paraphernalia a sample was sent for chemical analysis. 
The sample which was sent for chemical analysis was found to be diacetyl 
morphine (Heroin) commonly known as brown sugar. 
The prosecution mainly relied on the evidence of Shri T. Raman PW I, B 
the police officer, who effected the search and se
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