NDPS accused has right to be searched before gazetted officer — HC

Based on these observations, the Bombay High Court recently set aside the conviction of a Nigerian woman, Eliza Parchal aka Zilliza Isuchukwa since police had failed to inform her on her rights.

Parchal was convicted under the NDPS Act in an order given by the Special Judge trying NDPS matters, on August 11, 1995. She was convicted and sentenced to ten years’ rigorous imprisonment and a fine of a lakh of rupees, the failure to do which would entail an additional one year RI.

The case of the police was based on the following facts: An informant Nana Ahire, attached as police constable to the Azad Maidan, Narcotics Cell had on April 19, 1993 at 2.30 pm obtained information that a Nigerian woman at Viler Villa, Ramchandra Marg, Colaba was dealing in narcotic drugs. The information was conveyed to police inspector Ashok Khedekar and recorded in the information book in the cell and passed to the DCP, Narayan Nirgude and ACP More.

After reaching the spot, police were informed that the woman lived in room no 101 in the building, and police knocked at the door. Parchal opened the door and after identifying themselves, police informed her she had a right to be searched before a gazetted officer, and was also told that in this case, Khedekar was a gazetted officer. She was also informed she could be searched before a magistrate if she so desired. However, she apparently declined.

The police found two polythene bags in her bag filled with pink-coloured tablets. The tablets when tested showed the presence of mandrax tablets. In all, police recovered 1.175 kilos of mandrax in that bag and found 36 capsules in another bag. The second bag was found to have heroin. An FIR was filed by 7 pm. The woman pleaded not guilty.

In the high court, when it came up for appeal before the bench of Justice Vishnu Sahai and Justice P V Kakade, senior advocate Shirish Gupte argued for Parchal that since the recovery was on prior information, it was mandatory that the provisions of Section 50 (1) of the NDPS Act were followed. He argued it was not followed in this case and hence the conviction had to be set aside.

Section 50 (1) of the Act says when an officer duly authorised is about to search the person, he shall “if the person so requires take the person without delay to the nearest gazetted officer or the nearest magistrate” for the search. Quoting from various Supreme Court cases in such matters, the bench noted that the apex court has also stated that in such cases, the police has to “inform the person of the right to be taken to the nearest gazetted officer or magistrate. Failure would cause prejudice to the accused, and may not vitiate the trial, but render the recovery of the article suspect and vitiate conviction”.

The high court bench also noted that in this case, the appellant was not informed of the right and after going through the cross-examination records, observed that the recovery panchnama does not mention the apprisal made by Khedekar before the woman. The bench found it “unsafe to accept the evidence in the cross-examination” and set aside the order.

The bench noted that the right has to be conveyed to the suspect in “clear unambiguous language, a failure to do which might result in non-comprehension by the person, or being oblivious of the right.”