Anil Das vs State

Kumar Rajaratnam, J.—This petition is taken up for final disposal with consent of parties.

The petitioner is the accused. He is in judicial custody. The petitioner had the benefit of bail in the Trial Court, but was unable to take the advantage of the bail order on the ground that he was not able to fulfill the conditions imposed by the Trial Court while enlarging him on bail. The petitioner was directed to be enlarged on bail by the Trial Court on him executing a bond for Rs. 30,000/- with two solvent sureties. The Trial Court also imposed certain other conditions such as, that the petitioner shall report before the Investigating Officer as and when required and shall mark his attendance before the Commercial Street Police Station on every Sunday between 11.00 A.M. and 5.00 P.M. until further orders. Since the petitioner was not able to get two solvent sureties, the petitioner is still languishing in jail.

On 3-7-2002 the petitioner was arrested u/s 20(b) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ''Act'') and was produced before the Court and remanded to judicial custody. As stated earlier, the petitioner moved bail and the Trial Court was pleased to enlarge the petitioner on bail. The allegation against the petitioner was that, on 3-7-2002, at about 1.30 P.M. Inspector Noushad of CCB attached to the Commercial Street Police Station received credible information that one person was selling ganja near Kothandarama Nagar within the jurisdiction of the respondent-police. The respondent-police took the panch witnesses and one B.C. Rangaswamy as decoy to the place where the alleged ganja was being sold by the petitioner. A fifty rupee note was given by the decoy witness. At that time, the ACP Mandalkar who is a gazettedOfficer came to the spot and searched the person of the accused and seized 1.5 Kgs. of ganja valued at about Rs. 300/- (approximately). On his arrest, the petitioner was remanded to judicial custody. The petitioner preferred a bail application to the 33rd Additional Sessions Judge, and as stated earlier, the Sessions Judge granted bail on 30-7-2002. Since the petitioner was not able to get sureties, the petitioner has moved this Court on various grounds.

The first ground is that there has been a violation of Section 50 of the Act insofar as the search was done not in the presence of the Gazetted Officer, but by the Gazetted Officer himself.

The second ground is that the accused has been charged for an offence u/s 20(b) and the sentence u/s 20(b) reads as follows:

"If it involves a small quantity, with rigorous imprisonment for a term which may extend to six months or with fine which may extend to Rs. 10,000/- or with both".

In this case, there is no dispute that the seized Ganja is a small quantity. The definition of ''small quantity'' is found in the table given in annex to the Act. Sl. No. 55 refers to Ganja and small quantity is 1,000 Gms. equal to 1.00 Kg., the commercial quantity is defined as 20 Kgs., under the same table. Therefore, it is an admitted case that the amount of Ganja conies within the definition of small quantity. Taking that into account, the maximum sentence to the accused, if found guilty, would be six months or with fine which may extend to Rs. 10,000/- or with both.

Learned Counsel for the petitioner Mr. Joy submitted that it was not permissible for the Gazetted Officer himself to search the accused. What was expected was that the Gazetted Officer should be present when the search was conducted. Admittedly, the complainant is not a Gazetted Officer (It is not necessary that the complainant should be a Gazetted Officer). He is in the rank of an Inspector of Police, Although the person who was summoned was a Gazetted Officer and the search should have been done in his presence and he should not have conducted the search himself. It was further submitted that the Gazetted Officer should have been only present and supervised the search and not participated in the seizure by himself seizing the article. Mr. Joy, learned Counsel for the petitioner also submitted that AGP himself has given an endorsement that it was Mr. Mandalkar who conducted the search. In that view of the matter, learned Counsel for the petitioner Mr. Joy relied on the judgment of the Supreme Court in In the Matter of: Ahmed Vs. State of Gujarat, . The Supreme Court after analysing Sections 41, 42 and other relevant provisions of the Act, read with. Section 50 pronounced as follows:

"Section 50, which is supposed to be the minimum safeguard afforded to an accused, provides that when a search is about to be made of a person u/s 41 or Section 42 or Section 43, and if the person so requires, then the said person of whom search is about to be made has to be taken to the nearest gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. The argument of the learned Counsel for the respondent is based upon the expression used in Section 50 to the effect "any person duly authorised u/s 42" and, therefore, a distinction is sought to be made in case of a search between an empowered officer and a search made by an authorised officer. But the said argument is devoid of any substance, since Section 42 itself also speaks of search to be made by an officer, as is empowered by a general or special order by the Central Government or as is empowered by a general or special order by the State Government. A combined reading of the provisions of Section 42 and Section 50 would make it crystal clear that whenever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a gazetted Officer or the nearest Magistrate, the same must be complied with and failure to comply with the same would constitute an infraction of the requirements of the provision of Section 50, which would ultimately vitiate the conviction. For the purpose of complying with the provisions of Section 50, no differentiation can be made on a plain reading of the language used in Section 50, depending upon the officer who is going to search the person concerned. In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, by which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another gazetted Officer or the Magistrate and that right cannot be taken away merely because the officer going to search happens to be a gazetted Officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the Legislature has enacted the safeguard contained in Section 50 to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable. It is in this connection, it would be appropriate to extract the observations made by a three-Judge Bench of this Court in the case of Saiyad Mohd. Saiyad Umar Saiyad and Others Vs. State of Gujarat, :

"It is to be noted that under the NDPS Act, punishment for contravention of its provisions can extend to rigorous imprisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than rupees one lakh but which may extend to rupees two lakhs, and the Court is empowered to impose a fine exceeding rupees two lakhs for reasons to be recorded in its judgment. Section 54 of the NDPS Act shifts the onus of proving his innocence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, than an accused has committed an offence under it in respect of the articles covered by it "for the possession of which he fails to account satisfactorily". Having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the Legislature has enacted the safeguard contained in Section 50. To obviate any doubt so as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a gazetted Officer or a Magistrate. We endorse the finding in State of Punjab Vs. Balbir Singh, , that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a gazetted Officer or a Magistrate".

In the aforesaid judgment, not only the decision of this Court in Balbir Singh''s case, supra, to the effect that the provisions of Section 50 are mandatory, has been endorsed but also, it further indicates that it obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a gazetted Officer or a Magistrate. In the case in hand, the evidence of P.W. 1 indicates that even though the obligation of the officer had not been discharged by way of informing the accused of his right to demand that the search be conducted in the presence of a gazetted Officer or a Magistrate but the accused himself wanted to be searched before another gazetted Officer or a Magistrate but that was not acceded to. It is not necessary to notice several decisions of this Court, holding the provisions of Section 50 to be mandatory and we would notice the recent Constitution Bench decision on the point. In the case of State of Punjab Vs. Baldev Singh, , this question was considered and answered by the Constitution Bench by holding that it is an obligation of the empowered officer and his duty before conducting the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a gazetted Officer or a Magistrate and the failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is in-built in Section 50. It was further held that if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence of the accused based solely on recovery made during that search bad. This Court further held that bearing in mind the purpose for which the safeguard has been made, it is held that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty on the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted Officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act. In paragraph 57 of the judgment in Baldev Singh''s case, supra, the Constitution Bench held as follows:

"(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-section (1) of Section 50 of being taken to the nearest gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted Officer or a Magistrate would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the-illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act".

Placing reliance on the pronouncement of the Supreme Court Mr. Joy submitted that the accused is entitled to be discharged and when the discharge application was made, the Trial Court was pleased to dismiss the application without referring to the judgment of the Supreme Court in Ahmed''s case, supra, although it was cited by the learned Counsel for the petitioner.

Mr. Kumar, learned Public Prosecutor submitted that the compliance has been in accordance with Section 50 of the NDPS Act. He took me through the remand application furnished by the Inspector Naushad, and submitted that Mr. Mandalkar had not participated in the search.

Having stated the law as pronounced by the Supreme Court, it would not be necessary for this Court to deal with the factual aspect of the matter as to whether the ACP Mandalkar had in fact was a witness or whether he has actually participated in the search for the simple reason that the petitioner has already spent more than nine months in custody as he is in custody since 3-7-2002 and continues to be in custody.

The trial has just begun. It was submitted by Mr. Joy, learned Counsel for the petitioner that, even assuming that they admit that the accused is held guilty, he could not have been in custody for more than the maximum period mentioned in the Act (which is six months) and since he was not in a position to pay any fine, considering the value of Ganja, that being about Rs. 256 - 300 and the quantity of 1.5 Kgs. and taking into account the law laid down by the Supreme Court and also taking into account that the punishment u/s 20(b) which says that the maximum sentence shall be six months, any more detention of the petitioner would be clearly violative of Article 21.

Mr. Kumar, Counsel for the respondent submitted that the maximum, sentence is six months and fairly admitted that the accused would not be in a position to pay any fine. But, however, submitted that it would be appropriate to allow the trial to continue.

In any view of the matter, without standing on hyper-technicalities, this revision petition is disposed of directing that the petitioner be released forthwith and the proceedings be dropped in the Trial Court since the petitioner has been in custody for (nine months) more than the maximum period fixed under the Act (six months). The petitioner shall be set at liberty forthwith.

Mr. Kumar, learned Public Prosecutor has no objection for this course of action.

He is permitted to file his memo of appearance within four weeks.