Mohd. Khan and Cate Hujam vs State

T.S. Doabin, J.—Appellant stands convicted u/s 20(b)(ii) and Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985

(hereinafter referred to as the Act of 1985).

Prosecution story in brief is that on the night intervening 1/2 Feb., 1988 near factory of Fatehpur Garian, the police party had laid a ambush near

the factory of Fatehpur Garian. At about 10.40 p.m. in the mid night the police party heard some persons talking to each other. The police party

asked them to disclose their identity. These persons started running. They were three in number. Two of them were successful in escaping from the

police cordon, whereas one of them carrying one cloth bag was apprehended by the police party. The person who was so apprehended is none

but the appellant in this case. As soon as he was apprehended, he threw the Plastic bag on the ground. The commodity so thrown on the ground

was taken possession of. It was found that the packet contained 75 gms. of heroin and 2800 gms. of charas. This was seized immediately. Later

on this was subjected to chemical analysis. On chemical analysis it was found that what was taken possession of was 'charas'. However, with

regard to packet which was alleged to be containing heroin, no definite opinion become available. This was because of the disturbed situation in the

Kashmir valley the requisite report was not received.

Learned counsel for the appellant submits that in view of law laid down by the Supreme Court of India in the case reported as State of Punjab

Vs. Baldev Singh, the appellant merits acquittal. It is submitted that it was imperative for the officers to inform the appellant orally or in writing

about his right to be searched before a Gazetted Officer or a Magistrate. It is submitted that failure to give such information may not only vitiate the

trial but would render the recovery of illicit articles illegal and consequently vitiates the conviction and sentence if recorded on the basis of recovery

of such illicit article. It is urged that as the Supreme Court of India has approved the view expressed by the Court in the case of Ali Mustaffa Abdul

Rahman Moosa Vs. State of Kerala, : Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, and as the facts in Ali Mustafa's case are similar to

the facts in the present case, therefore, the conviction recorded in the case cannot be sustained.

Before examining the import of the two judgments referred to above, the facts in brief be noticed.

PW 1 Qayoom Hussain Constable No. 302 stated that he was member of the raiding party. They had laid an ambush. Police party found three

persons coming towards them. An effort was made to apprehend them. Two of them escaped and the appellant was caught. The appellant threw

the bag and the envelope which contained white powder on the ground for the purpose of destroying the same. It was in this manner the illicit

article was recovered from the appellant.

PW 2 Naseer Ahmed is another Constable. This witness also stated that the accused attempted to throw one packet in a bag made of cloth.

This contained heroin and 'Charas'.

PW 3 Balkar Chand is another constable, who was also member of the party which had laid an ambush. This witness stated that an effort was

made by the appellant to destroy the 'heroin'. He threw the packet on the ground. The fact that the plastic packet which contained the 'heroin' was

thrown on the ground and that it was spread over the grass and some quantity of the material remained in the plastic bag, has again been adverted

to, PW Munshi Khan, who was Asstt. Sub-Inspector in the Criminal Investigation Department.

PW Mohd. Ashraf is Head Constable. He has also testified to the fact that the packet containing heroin was thrown on the ground. It was

picked up and whatever material could be retrieved was retrieved. This was duly sealed.

Scope of Section 50 of 1985 Act be examined.

While examining the scope of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (also referred to as the 1985 Act), a

Constitution Bench of the Supreme Court of India has observed 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. The failure to so inform the suspect of his right would render the search illegal because the

suspect would not be able to avail the protection which is inbuilt in Section 50. Similarly, 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. It was also observed that the further question is as to whether the

provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with, it was said

that strictly speaking it does not arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person

intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in

mind the purpose for which the safeguard has been made, it was 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. The omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused

to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. The protection

provided in Section 50 to an accused to be intimated that he has the right to have his personal search conducted before a Gazetted Officer or a

Magistrate, if he so requires, is sacrosanct and indefeasible. It cannot be disregarded by the prosecution except at its own peril.

The above questions came to be considered because there was divergence of opinion between different benches of the Supreme Court with

regard to the ambit and scope of Section 50 of the 1985 Act. In the case of State of Punjab Vs. Balbir Singh, and number of other cases it was

held that failure to observe the safeguards, while conducting search and seizure as provided by Section 50..would render the conviction and

sentence of the accused illegal. However, in the State of Himachal Pradesh Vs. Shri Pirthi Chand and another, and in State of Punjab Vs. Labh

Singh, relying upon the judgment in case Pooran Mal Vs. The Director of Inspection (Investigation), New Delhi and Others, a discordant note was

struck and it was held that evidence collected in a search conducted in violation of Section 50 of the Act of 1985 did not become inadmissible in

evidence under the Evidence Act. On account of this difference of the opinion the whole issue was re-examined in State of Punjab Vs. Baldev

Singh, . Ultimately, what was concluded in paragraph 57 (of SCC) is being reproduced below :

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.

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.

That a search made by an empowered officer on prior information, without informing the person of his right that if he so required, 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 provision of Section 50 of the Act.

That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off

because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the

procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against

the official concerned so that the laxity on the part of the investigating authroity is curbed. In every case the end result is important but the means to

achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a

cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine

respect for the law and may have the effect of unconsciously compromising the administration of justice. That cannot be permitted. An accused is

entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the

safeguards provided by Section 50 at the trial, would render the trial unfair.

That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of

the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal.

Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards

provided therein were duly complied with, it would not be permissible to cut short a criminal trial.

That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched or do not

express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned 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.

That an illicit articles seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the

Act cannot be uuse as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that

search may be relied upon the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal

search.

A presumption u/s 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the

contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a

presumption u/s 54 of the Act.

That the judgment in Pooran Mal case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior

information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit

article on the person from whom the contraband has been seized during the illegal search.

That the judgment in Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, correctly interprets and distinguishes the judgment in Pooran

Mal case and the broad observations made in State of Punjab Vs. Jasbir Singh and Others, are not in tune with the correct exposition of law as

laid down in Pooran Mal case.

From the perusal of the above conclusion, it becomes apparent 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 of being taken to a nearest Gazetted

Officer or the nearest Magistrte for making the search. Such information may not necessarily be in ' writing. If there is failure to inform the person

concerned about the existence of his right to search in the manner indicated above, then this would cause prejudice to the accused. If search is

made not on prior information, without informing the person of his right, then this may not vitiate the trial.

A perusal of judgment in State of Punjab Vs. Baldev Singh, etc. etc., also makes it clear that the requirement to comply with Section 50 is

there only in case of a search of a person as distinguished from search of any premises etc.

What is said in paragraph 12 is being reproduced below :

On Its plain reading, Section 50, would come into play only in the case of a search of a person as distinguished from search of any premises etc.

However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a

person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the

NDPS Act is also recovered the requirements of Section 50 of the Act are not attracted.

Some other decisions be also noted.

In the case C. Ali Vs. State of Kerala, it has been held that requirement of informing the accused of his right to be searched in the presence of

a Gazetted Officer or a Magistrate is mandatory, Non compliance thereof vitiates the trial. See also Kalayath Nassar Vs. State of Kerala, .

In Babu Vs. State of Kerala, a packet containing a certain quantity of brown sugar was recovered by Police from the person of the accused

without informing him of his right to be searched in the presence of a Magistrate or a Gazetted Officer. Such omission on the part of the Police

Officer concerned, it was held, would vitiate the consequential conviction and sentence passed against the accused.

In Mohd. Hussain Farah Vs. Union of India and Another, , the1 DRI Officer apprehended the appellant on receiving information that appellant

who was involved in an earlier case under the Act and who had jumped bail was staying in a hotel under a false name. The DRI Officer had no

information that accused had kept or concealed heroin in the hotel room. They conducted search in the room only with a view to find out whether

there was any incriminating article in that room. In the course of such search heroin was recovered. It was not put to the prosecuting witnesses

necessary authorisation for the purpose of carrying out the search. No such point was taken before the trial Court. The point was taken for the first

time before the High Court. It was observed that there was no substance in the contention that search of the hotel room was made at 9.30 PM and

that it had continued upto 2.00 a.m. and therefore, there was breach of Section 42 of the Act as the Officer had not recorded any grounds as

required by that provision.

Requirement of informing the person of his right u/s 59 to be searched in presence of a Gazetted Officer or a Magistrate, is applicable only to

the search of the person and not to the search of his baggage. The baggage of a foreigner arriving in India, which was found to contain heroin. It

was held that the search of the baggage of a foreigner arriving in India, which was found to contain heroin did not attract Section 50. Thus in

Kalema Tumba Vs. State of Maharashtra and Another, it was observed that only when the peson of an accused is to be searched then he is

required to be informed about his right to be examined in the presence of a Gazetted Officer or a Magistrate. The reason given was that search of

baggage is not the same thing as search of the person himself. If a person is carrying a bag or some other article with him and a narcotic drug or a

pysychotropic substance is found from it, it cannot be said that it was found from his person.

In view of the above, it is concluded:

i. If prior information is available then the person to be searched is to be informed of his right of being searched in the presence of a Gazetted

Officer or a Magistrate. :

ii. The information need not be in writing

iii. If the search is conducted in the absence of the information, then the search would be valid;

iv. That an illicit article seized from the person of the accucsed during search in breach of the safeguards laid down in Section 50, cannot by itself

be used as evidence of unlawful possession of the contraband. This may be used in other proceedings.

v. That it is imperative for the Investigating Officer to inform the concerned person of his right under Sub-section (i) of Section 50 of being taken to

the nearest Gazetted Officer or the nearest Magistrate for effective search on him. Failure to give such information would not vitiate the trial but

would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused;

vi. Where the conviction has been recorded only on the basis of the possession of the illicit article recovered from his person during the search

conducted in violation of the provisions of Section 50 of the 1985 Act, this would be bad.

vii. That the requirement of the right of a person to be informed would be applicable only if the person is to be subjected to personal search and if

the premises are to be searched then the safe-guards provided u/s 50 would not be applicable.

viii. The again search would not be vitiated if something is recovered from a baggage or from a packet which is being carried by the accused. This

is because a clear distinction has been made between search of the person and search of premises and again search of baggage, which includes

packets carried by an accused.

The question arise whether in the facts and circumstances of the case was there any opportunity available with the empowered or duly

authorised officer to inform the appellant regarding his right to be searched in the presence of a Gazetted Officer or a Magistrate.

The question of a search would arise only if something was still in possesion of the appellant. If Dictionary meaning of the word 'search' is

taken note of then it would mean to examine the person or personal effects of in order to find something concealed especially a part of police

procedure."" In Black's Law Dictionary Sixth Edition page 1349 the term is defined as under :-

A. ""Search"" implies prying into hidden place for that which is concealed and that the object searched for had been hidden or intentionally put out of

the way merely looking at that which is open to view is not a search. People v. Harris 256 CA 2d 455 63 Cal, Reptr 849, 852.

B. It consists of probing or exploration for something that is concealed or hidden from searcher, an invasion, a quest with some sort of force, either

actual or constructive, People v. Carrol II App 3d 869 : 299 ME 2d 134.

C. ""Search"" to which the exclusionary rule may apply is one in which there is a quest for, a looking for, or a seeking out of that which offends

against the law by law enforcement personnel or their agents.Varges v. State, Tax Cr. App 542 SW 2d 151.

In the present case the prosecution story is that the appellant on seeing the police party not only started running but when he was apprehended

he threw the packet containing 'heroin' on the ground. The other packet contending 'Charas' was also thrown on the ground. Such is the

categorical statement made by PW-1 Qayoom Hussain, Constable PW Nasser Ahmed and other PWs including PW Munshi Khan, ASI CID,

Rajouri. This was a case where the packet was thrown on the ground. Some of the while powder had spread on the grass. The other packet

containing Charas had also fallan on the ground. There was, therefore, no occasion to search the appellant. Therefore, the requirement of

complying Section 50 would not arise in this case. Had the appellant not thrown the illicit articles on the ground and had these been still with him

something could have been said in favour of the appellant. The facts as existed on the file made it impossible for the authorised officer to give an

option to the appellant and if this be the position then what was said by the Supreme Court of India with regard to the provisions of Section 50

does not help the appellant as to ensure that the search of the person is conducted in the manner prescribed in Section 50 by intimating the person

concerned about the existence of his right that if he so requires the search would be conducted before a Gazetted Officer or a Magistrate, become

totally impossible to be complied with. Therefore, as observed by the Supreme Court of India, the question as to whether there are other material

circumstances available for justifying conviction are required to be looked into. These circumstances, if taken into consideration clearly bring out

that the appellant was found in possession of illicit contraband and therefore, he was rightly convicted under Sections 20(b)(ii) and 23 of the Act,

noticed above. These circumstances are;

(i) that he started to run on seeing the police party;

(ii) that he threw the illicit articles on the ground;

(iii) the illicit article was picked up from the ground and was taken into possession;

(iv) The chemical analysis report indicate that the packet contained 'Charas'. Regarding the other packet no definite opinion was expressed. This

was because of the disturbed situation in the valley.

The accused appellant in these circumstnces was rightly convicted for offence u/s 20(b)(ii) and Section 23 of the Narcotic Drugs and Psychotropic

Substances Act 1985.

This appeal, as such is- found to be without any merit and is as such, dismissed.