Krishna vs State of Karnataka

Anand Byrareddy, J.—Heard the learned Counsel for the appellant and the learned State Public Prosecutor.

The appellant was accused of offences punishable under sections 8C and 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Hereinafter referred to as the ''NDPS Act'', for brevity)

The facts are, that on 31.10.2007, at 4.30 p.m., the Inspector of Police, District Crime Investigation Bureau, Udupi, along with his staff is said to have proceeded in their vehicle from Manipal towards Ambagilu village and when they were passing the godown belonging to the Food Corporation of India, they saw one Krishna @ Dombe Krishna, who, on seeing the Police, had tried to flee and therefore, the Police had caught him and since his movements were suspicious, and on examining the plastic bag which was with him and on questioning him, he had stated that he was carrying charas to sell at Manipal. The Police Inspector, PW.5 had informed the accused that he would be searched and also informed him of the option of choosing between a Gazetted Officer or PW.5 himself to search the accused. The accused purportedly had informed the Police Inspector that a Gazetted Officer should search him. As such, PW.5 had summoned one Udaya Kumar Shetty, the Jurisdictional Tahsildar, PW.6, to the spot and subsequently the Police, in the presence of the Tahsildar, and in the presence of other panchas who were also summoned to the spot, had searched the person of the accused and they had found a brown coloured substance which was in a plastic bag. It was sticky to the touch and on questioning, it was reported by the accused, according to the prosecution, that it was charas brought from Goa to be sold at Manipal. A Mahazar was accordingly drawn up and the charas was seized. The weight of the substance was found to be about 2 Kilograms. The substance seized was then sent to the Forensic Science Laboratory on 12.11.2007 under a number-PC 1029.

After completion of the investigation, a charge sheet was said to have been filed by the Police and charges were framed against the accused under Section 8C and 20(b)(iii) of the NDPS Act, to which the accused had pleaded not guilty and claimed to be tried. The prosecution had then examined eight witnesses and marked several exhibits and material objects and after recording the statement of the accused under Section 313 of the Code of Criminal procedure, 1973, and after hearing both the sides, the court below had framed the following point for its consideration:

"Whether the prosecution proves that the accused has commuted the offences punishable under section 8C and 20(b)(iii) of the NDPS Act?"

The court below has answered the above point in the affirmative and the appellant was convicted for the offences under Sections 8C and 20(b)(iii) of the NDPS Act, as aforesaid and was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-. It is that which is under challenge in the present appeal.

The learned Counsel for the appellant would straight away submit that the entire case of the prosecution is based on the recovery said to have been made of the contraband in the possession of the appellant. In this regard PW.3 was said to be an independent mahazar witness. In his testimony, several contradictions have been elicited, but the court below has not taken note of the same and has glossed over the said circumstance. More importantly, the learned Counsel would submit that in carrying out the search on the person of the accused, the law is well settled, as noticed in a recent decision of the Supreme Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, . That with reference to Section 50 of the NDPS Act, there are prescribed conditions under which a personal search of a person is required to be conducted. The Section stood amended by Act 9 of 2001, inserting sub-sections (5) and (6) with effect from 2.10.2001. This was warranted, because while considering the question of compliance of section 50 of the NDPS Act, a constitution bench in the case of State of Punjab Vs. Baldev Singh, etc. etc., , had observed that when an empowered officer or a duly authorized officer acting on prior information, is about to search a person, it was imperative to inform a 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, the said information may not necessarily be in writing. But a 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 and that 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 a 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.

Though the constitution Bench did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory, yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer "inform" the person concerned about the existence of his right, as aforesaid. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form, or in writing, but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. It was held thus that any other interpretation of the provision would make the valuable right conferred on the suspect, illusory and a farce.

It was in this background that sub-sections (5) and (6) were inserted in section 50. Although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub-sections, viz. when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance etc., or article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases a safeguard against any arbitrary use of power has been provided under sub-section (6). Under the said sub-section, the empowered officer is obliged to send a copy of the reasons, so recorded, to his immediate official superior within seventy two hours of the search.

Therefore, the Supreme Court in Vijaysinh Chandubha, supra, has finally held that the insertion of the two sub-sections does not obliterate the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate.

The object and the effect of insertion of sub-sections (5) and (6) were considered by a Constitution Bench in Karnail Singh Vs. State of Haryana, . It was observed therein that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev Singh''s case, supra was diluted, but it was again opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away completely.

It was further concluded that apart from the fact that in Karnail Singh, supra, the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search, seizure and arrest without warrant or authorisation, the said decision did not depart from the dictum laid down in Baldev Singh''s case, supra in so far as the obligation of the empowered officer to inform the suspect of his right enshrined in sub-section (1) of Section 50 of the NDPS Act was concerned. It was also held that it was plain that the flexibility in procedural requirements in terms of the two newly inserted sub-sections could be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub-section (6) of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub-section (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial.

Therefore, relying on these settled principles, the learned counsel for the appellant in the present case on hand, would submit that though it is incidentally stated in the evidence that there was an option provided to the petitioner to be either searched by the Police Inspector himself or to be taken before a Gazetted Officer, the requirement under law was either to be searched by a Gazetted officer or by a magistrate and hence, not only was the said statement made mechanically, without there being an actual compliance of the same and was only stated in the course of evidence, without any other material being produced in support of the same, the very option offered was not in consonance with law, as the option to be offered was the petitioner was to be either searched by a Gazetted Officer or a Magistrate. That not having been complied with, there was a violation of the law as laid down by the Supreme Court and on that count, the appellant ought to be acquitted.

While the learned State Public Prosecutor would submit that in the light of the law as laid down by the apex court, if from the record, it cannot be shown that there was an option given to the appellant, either to be searched by a Gazetted Officer, or a Magistrate, then he would have no answer to the contention of the appellant that he ought to be acquitted.

In the above circumstances, though there is no requirement that the option offered to the accused of being searched either by a Gazetted Officer or a Magistrate should be in writing, it would be necessary that this circumstance should be recorded and this would be complied with if the further requirement of the officer carrying out the search, informs his immediate superior within 72 hours, placing this fact on record. The object with which the right under section 50(1) of the NDPS Act by way of a safeguard, has been conferred on the suspect is to check the misuse of power and minimise the allegations of planting or foisting of false cases by the law enforcement agencies. This the Supreme Court has said in so many words while also holding that insofar as the obligation of the authorized officer is concerned, it is mandatory and requires to be strictly complied with. Failure to comply with the procedure would render the recovery of the contraband suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.

Therefore, in the present case on hand, the entire prosecution case rests on the recovery of the illicit article from the possession of the appellant and hence the manner in which the search has been conducted assumes significance and in the face of the circumstance that there was total failure in complying with the requirement under the section, not only in providing an option of the petitioner being searched by a Gazetted Officer or a Magistrate but, also in the concerned officer failing to inform his immediate superior within 72 hours of having complied with such requirement. Therefore, the appellant is certainly entitled to claim that the proceedings are vitiated.

Hence, the appeal is allowed on the above short ground. The judgment of the court below is set aside. The bail bond furnished by the accused stands cancelled. The fine amount, if any, paid shall be refunded.