L. Biswanath Singh vs State of Assam

A.H. Saikia, J.—On 18.12.1993, the Appellant, as per the prosecution case, was found moving in a suspicious manner near Apsara Cinema Complex, Guwahati and talking with some young Manipuri boys in a whispering tone. Apprehending some doubt over the Appellant, regarding his activities, P.W. 1, Chandradhar Singh accosted the Appellant and then he noticed that the Appellant was trying to hide something in his pocket. When he caught the Appellant by hand, the Appellant challenged him. P.W. 1, at that time, saw a police constable, in uniform, moving at the place and requested him to take the Appellant to Thana'', but his request was refused. Then P.W. 1 forcibly took the Appellant on a rickshaw to Hari Mandir situated at Manipuri Basti. By that time many persons gathered there. Meanwhile, P.W. 3, Lokeswar Singh, President of the Mandir and Manipuri Basti Welfare Committee, and P.W. 4 Shyamsundar Singh and one Basana Singh arrived there to whom P.W. 1 told that he had brought the Appellant on suspicion and asked them what to do with him. Thereafter they decided to hand over the Appellant to the Police. Accordingly, they sent one Samarjit Singh to inform Narcotic cell situated at Ulubari, Guwahati to inform about the matter. From the said Office, P.W. 10, Parimal Choudhury, Inspector, C.I.D. with other staff arrived at the place and they searched the accused person and recovered 3 purias containing white colour substance, alleged to be heroin from his pocket and made a field test and seized the same accordingly. On being questioned by them, the Appellant led them to Metro Hotel at Paltan Bazar to Room No. 22 where two other associates viz. Kh. Sourchandra Singh and his wife Smti Promodini Devi were staying. There, Sri Kh. Sourchandra Singh, brought out a ploythene packet from the midst of other papers lying on the table which contained 250 mg. of heroin and hence the same was seized. Smt. Promodini Devi was also searched and a cash of Rs. 5000/- was recovered from her purse which was also seized. All those three persons were arrested and during interrogation, Kh. Sourchandra Singh made his statement regarding concealment ofheroin at the hotel. On being led by Kh. Sourchandra Singh, Anr. search and seizure were made in respect of4 gram 250 mg. of heroin from the of the curtains hanging on the doors and windows of the hotel of Room No. 22 and the same was also seized.

A report of the Forensic Science Laboratory to which the sample of the seized contraband was sent, confirmed the sample to be heroin. After completion of the investigation, police submitted charge sheet against all these 3 accused persons u/s 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act).

The learned Sessions Judge framed charge against all these 3 (three) accused persons including the Appellant under the aforesaid Section of the Act to which the accused persons along with the Appellant pleaded not guilty.

The prosecution examined as many as 11 witnesses including 3 witnesses examined as court witnesses. The statement of the accused persons were recorded u/s 313 Code of Criminal Procedure. No evidence adduced on behalf of the defence.

On appreciation of the material evidence on record and upon hearing learned Counsel for the parties, the learned Sessions Judge found the Appellant along with Kh. Sourchandra Singh guilty and convicted them u/s 21 of the Act imposing a sentence of rigorous imprisonment of 10 years or to pay fine of Rs. 50,000/- each, in default, further imprisonment of 6 months each. Other accused, Promodini Devi was acquitted on benefit of doubt and set at liberty. Hence, the aforesaid conviction and sentence has been challenged by the Appellant alone in this criminal appeal.

Heard Mr. J.M. Choudhury, learned Senior Counsel for the Appellant also heard Mr. B.S. Sinha, learned Public Prosecutor, Assam.

Challenging the impugned conviction and sentence ofthe Appellant, Mr. Choudhury, learned Senior Counsel has pressed into service only one ground contending that when P.W. 1 and P.W. 3 and the seizure list i.e. Exhibit. 1 specifically corroborated as regards the recovery of heroin in question from the possession of the Appellant, Section 50 ofthe Act was not complied with. In other words, the safeguard available u/s 50 of the Act was not at all informed to the Appellant at the time of seizure of heroin from his possession.

For better appreciation of the sole argument advanced by Mr. Choudhuiy, it would be necessary to refer to unamended Section 50 of the Act as the said Section was amended in 2001 by inserting Sub-section (5) and (6), which reads as follows:

Conditions under which search of persons shall be conducted-

(1) When any officer duly authorized u/s 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted officer or the Magistrate referred to in Sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

On bare perusal of the Section 50 of the act as stood prior to amendment, goes to show that it is a condition precedent that before any search is made of any person allegedly to have in possession of substances in question, the authorized officer, on disclosure of the person concerned, is required to take such person to the nearest Gazetted Officer of any department or to nearest Magistrate. Relying on the above provision, Mr. Choudhury has forcefully contended that at no point of time Appellant was informed about his right under Sub-section (1) of Section 50 of the Act. Drawing attention to the depositions of P.W. 1 and P.W. 3, Mr. Choudhury contended that there was no whisper in the depositions of those witnesses that he was ever brought before any Gazetted Officer or Magistrate by the Inspector concerned for the search of his body to recover the heroin in question from his possession.

In support of his submission, Mr. Choudhury relied on a decision of the Constitution Bench of the Apex Court in a case of State of Punjab Vs. Baldev Singh, etc. etc.,

In Baldev Singh''s case (supra), the Apex Court in dealing with the scope of Section 50 of the Act ruled as under:

On the basis of the reasoning and discussion above, the following conclusions arise:

(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right u/s (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 concerned person 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 refer the recovery of the illicit article suspect and vitiate the conviction and sentence 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 ofthe Act;

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

In the backdrop of submission of Mr. Choudhury and settled law aforementioned, now let us examine whether the safeguard enumerated in Section 50 of the Act has been complied with in the instant case:

(i) P.W. 1 in his deposition categorically deposed that P.W. 9 including other 4/5 staff arrived at the place and they searched his body and on such search they found 3 purias from his pocket. He, in cross, reinforced that the body search ofthe accused Appellant was made by one of the person as directed by the said C.I.D. Officer and then he was standing 3 feet away and after some time 3 purias were found which were packed in white papers.

(ii) Corroborating the testimony of P.W. 1, P.W. 3 testified that C.I.D. Officers numbering 3/4 questioned the Appellant and they checked his body and 2 or 3 purias were found in his pant pocket.

(iii) On the other hand, the seizure list i.e. Exhibit. 1 clearly indicates that the seized articles i.e. the heroin in question were recovered from the possession of the Appellant.

From the conjoint reading of the above depositions of P.W. 1 and P.W. 3 and the contents in the seizure list i.e. Exhibit. 1, it is abundantly clear that the safeguard prescribed u/s 50 of the Act has not been informed to the Appellant and the same is, therefore, contraiy to the dictum ofthe settled law as laid down by the Apex Court in Baldev Singh''s case (supra).

In term of Section 50 of the Act, a duty has been cast upon the authorized officer, who is acting on prior information for making search of a person, to inform the same person about the right available u/s 50(1) of the Act i.e. the person is required to be taken to the Gazetted Officer or the nearest Magistrate for making such search. Failure to inform the concerned person about the existence of such right to be searched before the Gazetted Officer or Magistrate would naturally cause prejudice to the accused and hence, any conviction and sentence on the basis of recovery of contraband articles from the possession of the person concerned during the search conducted upon the person can not be sustained due to the clear violation of the provision of Section 50 of the Act.

In view of what has been discussed and observed, this Court is of the view that the impugned conviction and sentence of the Petitioner is liable to be set aside and quashed. It is ordered accordingly.

In the result, the appeal succeeds and stands allowed. Accused/Appellant is hereby acquitted. Bail bond so furnished by the Appellant stands discharged.