Compliance With Section 50 of NDPS Act Must Be Substantial, Not Merely Semantic: Bombay High Court

“Slight Lapses in Wording Do Not Vitiate a Search When Right Is Clearly Communicated” – Section 50 Must Be Interpreted With Practical Realism, Bombay High Court (Panaji Bench) delivered a significant verdict, reaffirming the mandatory nature of procedural safeguards under the NDPS Act but rejecting hyper-technical interpretations that could derail otherwise lawful prosecutions. Justice Shreeram V. Shirsat, while upholding the conviction of the appellant for illegal possession of commercial quantities of LSD (Lysergic acid diethylamide), Cocaine, and MDMA, ruled that compliance with Sections 50 and 42 of the NDPS Act had been duly established, despite minor inconsistencies in witness testimony.

The Court found no merit in the contention that the search and seizure were invalid merely because the pancha witness used casual language or failed to recall exact phrases during deposition. The appeal challenging the 10-year sentence imposed by the Special Court, South Goa, was accordingly dismissed, with the Court holding that the prosecution proved its case beyond reasonable doubt.

“Pancha Witness Is Not a Tape Recorder” – Memory Lapses Don't Negate Section 50 Compliance

The appellant’s primary challenge was based on the alleged non-compliance with Section 50 of the NDPS Act, which mandates that a person being searched has a right to demand that the search be conducted before a Magistrate or a Gazetted Officer.

The defence relied heavily on the testimony of PW1, a pancha witness, who said:

“PSI Chawan informed the said person that he is required to be searched, and if he wants, he can call anyone before his search is conducted.”

The appellant argued this was insufficient and did not explicitly communicate the statutory “right” of the accused under Section 50. However, the Court noted that PW10, the main raiding officer, gave unambiguous testimony stating:

“I informed him that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate… however, he declined the offer.”

This statement, the Court held, satisfied the legal requirement under Section 50. The Court also found corroboration in the testimony of PW5 and PW9, both present during the raid, who confirmed that the accused was informed of his right and declined to exercise it.

Rejecting the appellant’s arguments, the Court observed:

“PW1 ought to have been more vigilant in his deposition; however, one has to be alive to the situation that the panchas cannot be expected to remember with precision, and that too after so many years.”

Drawing from the Supreme Court’s landmark judgment in Bharwada Bhoginibhai Hirjibhai vs. State of Gujarat, the Court reiterated that

“a witness is not expected to possess photographic memory, nor act as a human tape recorder.”

The Court emphasized that what matters is the substance and not the semantics of the communication. As long as the accused was made aware of his right, the procedural safeguard is satisfied.

“Written Intimation to SDPO Establishes Section 42(2) Compliance” – No Illegality in Pre-Raid Procedure, Rules Court

The second major legal contention concerned Section 42(2) of the NDPS Act, which mandates that any intelligence regarding drug trafficking must be reduced to writing and forwarded to a superior officer before a search is conducted.

PW10, the investigating officer, deposed that upon receiving reliable information about the impending delivery of drugs at Palolem Beach between 11:30 PM and midnight, he wrote it down and sent a copy via special messenger (PW4) to SDPO Shri Uttam Raut Dessai at his residence.

This version was fully corroborated by PW4, who confirmed the delivery of the intimation and its acknowledgment by the SDPO. The Court held that the procedural mandate under Section 42(2) had been fulfilled, noting:

“There is no reason to disbelieve the consistent and corroborated version of procedural compliance under Section 42. It has been clearly established that the requirement was fulfilled before the raid.”

“Use of Two Different Seals Does Not Invalidate Chain of Custody” – Court Finds No Evidence of Tampering

Another ground of challenge was the alleged discrepancy in the seals used during seizure and inventory. The seal used at the time of seizure was “Police Station Canacona Goa No. 3” whereas the seal used during inventory proceedings was “Police Inspector Canacona P.S. with Ashoka Emblem.”

The Court found no illegality, observing: “It is not necessary that the same seal used at the time of seizure be used at the time of inventory. The evidence clearly shows two distinct seals were used at two different stages, and the chain of custody has not been compromised.”

The Court was satisfied that the seal was handed over to the SDPO for safe custody immediately after the panchanama and that this chain was established through PW9 and other witnesses.

“Discrepancy of 0.01 Grams in LSD Weight is Too Trivial to Invalidate Recovery” – Commercial Quantity Confirmed Despite Variance

The appellant argued that minor discrepancies in weight between seizure records and CFSL reports created doubt about the authenticity of the recovered contraband.

The Court dismissed the argument, stating:“Even if the CFSL recorded the weight as 0.32 grams instead of 0.33 grams, it does not take the substance out of commercial quantity.”

The Court accepted the testimony of PW8, who clarified a typographical error and confirmed that 20 blot pads of LSD were recovered and weighed correctly.

Regarding Cocaine, the CFSL found the sample weighed 9.987 grams, slightly less than the 10.49 grams recorded at seizure. The Court held that such differences are scientifically and legally permissible, especially since the CFSL weight excluded packaging, and did not cast doubt on the recovery.

“Over-Enthusiastic Testimony or Memory Lapses Don't Render Witnesses Unreliable” – Court Declines to Discard Evidence Based on Minor Inconsistencies

The Court also addressed the contradictions between PW1 and PW2 regarding the timing of the accused's apprehension. While PW1 said the raid began around 10:40 PM and the panchanama concluded by 2:30 AM, PW2 (a taxi driver) said he dropped the accused at 10:20 PM and was contacted “an hour later” by police.

The Court held:“Although there is some discrepancy in the timings, that does not cause any dent to the prosecution’s case. PW2 never stated that the accused was not present at the raid site.”

Further, the fact that PW1 referred to the accused as of "Nigerian origin" — a detail absent in the original information note — was also held to be inconsequential:

“A witness, after years, may recall details that were known at the time of deposition, not necessarily at the time of first contact. This does not make the witness tutored.”

“Non-Supply of Panchanama Copy Not Proven; No Prejudice Caused” – Court Upholds Validity of Seizure

It was alleged that no copy of the panchanama was handed over to the accused at the time of the raid. The Court rejected the contention, holding:

“PW10 categorically deposed that the panchanama was handed over and signed by the accused. The omission by other witnesses does not override the direct evidence of the officer-in-charge.”

“Informant and Investigating Officer May Be Same; No Illegality If Investigation Is Not Solely Conducted by One”

The Court also dismissed the argument that the same person being both informant and investigator rendered the investigation illegal. It was noted that the case involved multiple officers, including PI Rajendra Prabhudesai and PSI Ramchandra Naik, and the investigation was not monopolized by the informant.

“There is no law barring the informant from being part of the investigating team, and no bias or illegality has been shown to exist.”

“Trial Court Has Correctly Evaluated Evidence, No Infirmity in Conviction”

Concluding the 31-page judgment, the Court held: “The observations of the Trial Court cannot be faulted. The prosecution has successfully proved guilt beyond reasonable doubt, and all mandatory safeguards under the NDPS Act were observed. There is no infirmity in the findings.”

Accordingly, the appeal was dismissed, and the conviction and sentence imposed under Sections 21(b) and 22(c) of the NDPS Act were upheld.

Date of Decision: 08 October 2025