Panaji: Bombay high court on Monday set aside the Nov 2024 judgment and order of the South Goa additional sessions judge at Margao, which convicted Kenyan national Joseph Achola Ouma in an NDPS case. HC acquitted him of all charges and quashed and set aside his 10-year imprisonment sentence after finding that the police did not follow procedure under the NDPS Act.The court stated that a “serious note” needs to be taken, as it appears that “officers conducting such searches are themselves not aware of requirements of law and what is expected of them to communicate to the suspect”.
Advocate Shivraj Gaonkar, representing Ouma, said there was no compliance of Section 50 of the NDPS Act concerning conditions under which a search of persons shall be conducted.The court found he was not given the option of the “right to be searched before a magistrate”, but was only given the option of a search before a gazetted officer present at the site, against the mandate of Section 50. It held that the police officer who was part of the investigating team cannot be considered an independent officer to witness a search.“…in the first place, no option of right to be searched before a magistrate was given, and to further damage or cause dent to the appraisal, the appellant was also informed in clear terms that the gazetted officer, SDPO Quepem, was also present at the spot and that he has a right to be searched in his presence, thereby polluting his selection of option,” the court stated.
