Shobharam Kirar vs State of Madhya Pradesh

D.P.S. Chouhan, J.

The appellant Shobharam, having been convicted by Shri Vijay Kumar Shrivastava, Sessions Judge, Narsinghpur in Special Case No. 6/94 for

committing offence u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) whereunder he has

been sentenced to ten yeas'' RI together with a fine of Rs. 1 lac and in default of payment of fine, to undergo one year''s further R. I., has

approached this Court by means of present appeal.

The appellant is resident of village Menhada within the P.S. Tendukheda, Distt. Narsinghpur. It was on 30-1-1994 that an informant gave

information to Rajesh Tiwari, Sub-Inspector of Police Tendukheda (P.W. 5) that in village Menhada, which falls within the said Police Station, that

Shobharam, the present appellant, carries on the business in opium and is at present possessed of the opium which is kept by him in the inner

pocket of his Baniyan. On receipt of such information, after making entry in the general diary, i.e. Roznamcha Sanha and proceeded, with the staff

accompanied by Mohd. Saheed Khan A.S.I. and other constables and Sainiks (Homeguard persons) and two witnesses Sitaram and Rangai, for

the village Menhada on 4 motor-cycles and reached there. The accused, seeing them, tried to rush inside his house but he was taken into custody

after surrounding him and thereafter, after obtaining the consent from the accused, the Incharge-Police Station, Rajesh Tiwari gave his search as

well as search of the staff and the witnesses to the accused whereafter the search of the accused Shobharam was taken. From the left inner pocket

of the Baniyan worn by the accused Shobharam, about 25 to 30 grams opium was found in a polythene pack which was seized on the spot

together with the Baniyan and the same was sealed and the seizure memo Ex.P.-3 was prepared. Thereafter, Dehati Nalishi was taken down and a

crime was registered by the police at the Police Station as Crime No. 17/94 u/s 18 of the Act. The Superintendent of Police as well as Asst.

Supdt. of Police were given information regarding the offence and report was communicated to them on wireless which is Ex. P.-11.

The seized article first of all was sent to the Excise Sub-Inspector who after examining the same, opined the seized article to be the opium

whereafter the article was sent to the Forensic Science Laboratory, Sagar and as per the report of the Forensic Science Laboratory, Sagar, the

seized article was found to be the opium of Poupi in impurified Co-agulated Juice. The report is Ex.P.-14. According to the report, the presence of

Marfin was found to be 2.39 which was above the specified standard. After investigation, the accused was booked for crime under Sections 18,

19 and 20 of the Act and he was accordingly charge-sheeted.

The incident is dated 30-1-1994 and the time of information given by the informant is 8.55 and the alleged recovery is of the same day at 11 a.m.

The place of recovery and arrest is Gram Menhada. The arrest was made at 11.30 a.m. The first information report of the crime was registered the

same date at 13.25 p.m.

The prosecution examined as many as 5 witnesses in support of its case. K. K. Singh, the Excise Sub-Inspector was examined as PW 1 as he has

given his opinion regarding the seized article being opium. Sitaram, a witness to seizure was examined as PW 2. Rangai, another witness to seizure

was examined as PW 3. S.S. Khan, Asstt. Sub-Inspector of Police, who accompanied Rajesh Tiwari, was examined as PW 4. Rajesh Tiwari, the

Investigating Officer, who made the arrest, search and seizure, was examined as PW 5.

The defence was that of denial and false implication and according to the defence, the appellant was taken by S. S. Khan, Assistant Sub-Inspector

of Police to the police station and there he was put in the police lock up and a false case was planted on him but no defence witness was

examined.

Heard Shri S.C. Datt, the learned counsel for the appellant and the learned State counsel, Shri L.S. Singh, Dy. Adv. General. The learned counsel

for the appellant made the following 3 fold submissions:-

(1) On account of the failure on the part of the prosecution to comply with the mandatory requirement of section 50 of the Act, the entire

proceedings are null and void, inasmuch as, the appellant, as required u/s 50 of the Act, was not told about his right that he has got a right for being

searched by a nearest Gazetted Officer of the departments mentioned in Section 42 or by the nearest Magistrate.

(2) The entire proceedings stand vitiated on account of non-compliance of the provisions of Sections 52 and 55 of the Act.

(3) There being no evidence on record that the seized article was sent to the Chemical Examiner for analysis and that the same was examined by

the Chemical Examiner and on this account, a serious prejudice has been caused to the appellant and as such, the entire proceedings are vitiated.

So far as the first submission is concerned, it is based on the requirement of Section 50 of the Act.

Conditions under which search of persons shall be conducted. -

(1) When any officer duly authorised 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 any one excepting a female.

The main thrust of the arguments of the learned counsel for the appellant is on the following words in the said section.

if such person so requires

Before making submission on the legal aspect, the learned counsel for the appellant took the Court through the Statement of S. S. Khan, Asstt.

Sub-Inspector of Police, P. S. Tendukheda where he stated that he was knowing the accused Shobharam and he accompanied the Incharge

Police Station Shri Rajesh Tiwari to the village Menhada and along with witnesses and as soon as he reached the house of the accused, the

accused after seeing him ran inside the house and he was caught by all the persons. On his asking, the accused told that he has no opium with him

and he volunteered by saying that he can search him. At this, Rajesh Tiwari, Incharge Police Station gave his search as well as the search of the

persons and obtained the consent letter regarding the search on the accused, and thereafter, the search was taken and the contraband article was

recovered from the inner pocket of the Baniyan worn by the accused, wrapped in a polythene wrapper. In this connection, the learned counsel for

the appellant further invited the attention of the Court to the specific statement that the accused was caught hold of by Rajesh Tiwari, Incharge

Police Station and Rajesh Tiwari did not tell the accused that if he so desires, he can get search done before the nearest Gazetted Officer or the

nearest Magistrate and he further stated that nothing in this regard was taken in writing to this effect. The relevant statement is as extracted below :

^^vfHk;q� dks jkts''k frokjh us idM+k FkkA jkts''k frokjh nkjksxk lkgc us vfHk;q� dks ;g ugha crk;k Fkk fd D;k rqe viuh eftLV�sV lkgc

;s vFkok jktif=r vf/kdkfj;ksa ls djokuk pkgrs gksA jkts''k frokjh nkjksxk lkgc us ekSds ij bl vk''; dh dksbZ fy[kkipkgs rks mldh ryk''kh eftLV�sV ds lkeus vFkok jktif=r vf/kdkfj;ksa ds lkeus djkbZ tk ldh gSA**

Thereafter, the learned counsel for the appellant placed before the Court the statement of Rajesh Tiwari, Investigating Officer (P.W. 5) who has

repeated the whole of the story and he stated that the accused volunteered for getting himself searched. At this, he prepared the consent letter

which is Ex.P-2 and contains the signature of the accused. The search was taken and the opium about 25-30 grams was recovered from the inner

pocket of the Baniyan which the accused was wearing and the article recovered was seized and the seizure memo was prepared. Learned counsel

for the appellant invited the attention of the Court to Para 4 of the Statement and the relevant portion is extracted below :

^^esjs ikl bruk le; ugha Fkk fd eSa ryk''kh ds fy, eftLV�sV ls ryk''kh ds fy, dksbZ vkMZj izkIr ugha dj ldkA eSaus vfHk;q� ls ;g ugha dgk fd

D;k eftLV�sV ls vFkok fdlh vf/kdkjh ls ryk''kh djkuk pkgsaxsA**

On this basis, the learned counsel for the appellant submitted firstly that it was not a case where the police personnel went to arrest a person or

search a person for something else. It was a case where the special information was provided by the informant to the police regarding the

possession of opium by the appellant and not only this, the informant was so much exact that the police officers were also told that the person is

keeping the opium in the inner pocket of the Baniyan; and as such the proceedings were taken regarding search, seizure and arrest under the Act

and the proceedings were not under the provisions of Code of Criminal Procedure.

Learned counsel for the appellant further submitted that to such cases, the requirement of law is that the person who was to be searched, ought to

have been told about his right in unequivocal language that he has got a right under the law for getting his search done either before the nearest

Gazetted Officer of any of the departments mentioned in Section 42 of the Act or before the nearest Magistrate. In this background, the learned

counsel for the appellant, in support of his submission placed reliance on the decision of the Supreme Court in State of Punjab Vs. Balbir Singh, In

that case, the question for consideration was as to what meaning to be given to the words ""if the person to be searched so requires."" There is no

dispute that the provisions of Section 50 of the Act are brought on the book so to avoid any harm to the innocent persons and to avoid raising of

allegation of planting or fabrication by the prosecuting authorities; and as such, the legislature has taken fullest possible precautions, so to see that

the innocent persons are not harassed. The question for consideration before the Supreme Court was whether the aforesaid words in Section 50

are mandatory. Section 50 lays down that if the person to be searched so requires, the officer who is about to search him under the provisions of

Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in

Section 42 or to the nearest Magistrate. The Supreme Court considered the meaning of the phrase ""if the person to be searched so requires"", and

it was held : When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred u/s

50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending

to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a nearest Gazetted Officer or

a nearest Magistrate. Thus, the provisions of Section 50 are mandatory. Now the question for consideration is that the person to be searched

should make a request as aforesaid, on his own or that he should be informed by the officer taking the search. The question of making of such a

request on his own by the accused would arise only when the accused person has knowledge of his such right. If he is innocent or ignorant about

his right, there is no question of his making such a request of his own. Of course, the section contains the words in sub-para (1).

The facts of the case relied on arc different as it appears from the judgment in the case of the State of Punjab v. Balbir Singh (supra). In that case,

its was held that if a police officer without any prior information as contemplated under the provisions of the N.D.P.S. Act makes a search or

arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Criminal Procedure

Code and when such search is completed at that stage Section 50 of the N.D.P.S. Act would not be attracted and the question of complying with

the requirements thereunder would not arise. In such a situation, as is observed by the Supreme. Court in the case (supra), the position was held to

be different and the Court found that the compliance of Section 50 N.D.P.S. Act in regard to search and seizure would not arise and such search

and seizure in compliance with the provisions of Criminal Procedure Code cannot be declared as illegal. But in the case in hand, the position is

different. Here the Police Officer received the specific information through the informant about the commission of the offence under the Act and the

Police Officer effected arrest, search and seizure not on any suspicion of commission of the punishable offence but under the provisions of the Act.

The Court in the above case considered the position that when a police officer carrying on the investigation including search, seizure or arrest

empowered under the provisions of the Criminal Procedure Code comes across a person being in possession of the narcotic drugs or

psychotropic substance then two aspects will arise. If he happens to be one of those empowered officers under the N.D.P.S. Act also then he

must follow thereafter the provisions of the N.D.P.S. Act and continue the investigation as provided thereunder. If on the other hand, he is not

empowered then the obvious thing he should do is that he must inform the empowered officer under the N.D.P.S. Act who should thereafter

proceed from that stage in accordance with the provisions of the N.D.P.S. Act. But at this stage the question of resorting to Section 50 and

informing the accused person that if he so wants, he would be taken to a Gazetted Officer and taking to Gazetted Officer thus would not arise

because by then search would have been over. As laid down in Section 50 the steps contemplated thereunder namely informing and taking him to

the Gazetted Officer should be done before the search. When the search is already over in the usual course of investigation under the provisions of

Criminal Procedure Code then the question of complying with Section 50 would not arise. In the present case, the proceedings were under the Act

and not under the Code of Criminal. Procedure. The Court in the aforesaid case (supra) also observed in Para 8 to the following effect:-

But if on a prior information leading to a reasonable belief that an offence under Chapter IV of the Act has been committed, then, in such a

case, the Magistrate or the officer empowered have to proceed and act under the provisions of Sections 41 and 42.

Para 16 of the said Judgment is relevant on the point and the same is extracted below :-

One another important question that arises for consideration is whether failure to comply with the conditions laid down in Section 50 of the

N.D.P.S. Act by the empowered or authorised officer while conducting the search, affects the prosecution case. The said provision (section 50)

lays down that any officer duly authorised u/s 42, who is about to search any person under the provisions of Sections 41 and 42, shall, if such

person so requires, take him without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to

the nearest Magistrate and if such requisition is made by the person to be searched, the authorised officer concerned can detain him until he can

produce him before such Gazetted Officer or the Magistrate. After such production, the Gazetted Officer, or the Magistrate, if sees no reasonable

ground for search, may discharge the person. But otherwise, he shall direct that the search be made. To avoid humiliation to females, it is also

provided that no female shall be searched by any one except a female. The words ""if the person to be searched so desires"" are important. One of

the submissions is whether the person who is about to be searched should by himself make a request or whether it is obligatory on the part of the

empowered or the authorised officer to inform such person that if he so requires, he would be produced before a Gazetted Officer or a Magistrate

and thereafter the search would be conducted. In the context in which this right has been conferred, it must naturally be presumed that it is

imperative on the part of the officer to inform the person to be searched of his right that if he so requires to be searched before a Gazetted Officer

or a Magistrate. To us, it appears that this is a valuable right given to the person to be searched in the presence of a Gazetted Officer or a

Magistrate if he so requires, since such a search would impart such more authenticity and creditworthiness to the proceedings while equally

providing an important safeguard to the accused. To afford such an opportunity to the person to be searched, he must be aware of his right and

that can be done only by the authorised officer informing him. The language is clear and the provision implicitly makes it obligatory on the

authorised officer to inform the person to be searched of his right.

And the Court in Para 20 came to the conclusion that:

When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred u/s 50 in the

context is all the more important and valuable. There it is to be taken as an imperative requirement on the part of the officer intending to search to

inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus,

the provisions of Section 50 are mandatory.

So is the conclusion in Para 25(5) of the said judgment, which is extracted below :-

On prior information, the empowered officer or authorised officer while acting u/s 41(2) or 42 should comply with the provisions of Section 50

before the search of the person is made and such persons should be informed that if he so requires, he shall be produced before a Gazetted Officer

or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person

to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of

Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person

opted for such a course or not would be a question of fact.

Learned State Counsel submitted that the case relied on by the learned counsel for the appellant would not be applicable as the appellant himself

gave him consent letter for his search being done by the investigating officer and that consent was duly signed by him and therefore with such

consent as given by the appellant himself the position becomes different as the person to be searched has relinquished his right as provided under

the Act.

The submission at the outset, as stated above, appears to be attractive but if accepted, would not satisfy the intent of law. The basic question of

waiver of right by consent would arrive only when the person knows about his right or he has knowledge about his right or he is made known

about his right but in the present case there is no material that the accused person was knowing his right or he was made known about his right

under the law. In this regard the only material is the statement of witnesses PW 4, S.S. Khan and P.W. 5, Rajesh Tiwari.

Learned counsel for the State submitted that from the para 20 of the Judgment of the Supreme Court (supra) it appears that the point of

consideration of the Hon''ble Judges of the Supreme Court was the word ""desires"" and not the word ""requires"". In para 16, of the Judgment

(supra) of course the words are ""if the person to be searched if so desires"" but on reading whole of the Paragraph it is amply clear that the Court

was considering the word ""requires"" and not ""desires.

The third submission of the learned counsel for the State was that the requirement of Section 50 for taking such person to the nearest Gazetted

Officer or the nearest Magistrate was complied with in the present case as in the present case the person who made the search was the person

empowered u/s 41 of the Act and appointed u/s 7 of the Act and in this connection the reliance is placed on the Notification No. F. No. B-6-35-

VSR-86-4801 dated 11-11-1985 published in exercise of the powers conferred by sub-section (2) of Section 41 of the Act.

The said notification is extracted below :

NOTIFICATION. - F. No. B-6-35-VSR-85-4801, dated the 11th November, 1985. - In exercise of the powers conferred by Sub-section (2)

of Section 41 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (No. 61 of 1985), the State Government hereby authorises following

officers for the purposes of the said sub-section, within the areas of their respective jurisdiction, namely :-

Excise Department -

(i) Excise Commissioner/Additional Commissioner of Excise.

(ii) Deputy Commissioner Excise.

(iii) Assistant Commissioner Excise/Assistant Commissioner Excise, Flying squad.

(iv) District Excise Officer/District Excise Officer, Flying Squad, (v) Excise Inspector/Excise Inspector, Flying squad, (vi) All Head Constables.

Police Department -

(i) Superintendent of Police/Additional Supdt. of Police.

(ii) Deputy Superintendent of Police.

(iii) Assistant Supdt. of Police.

(iv) Inspector.

(v) Sub-Inspector.

(vi) Assistant Sub-Inspector.

Revenue Department:-

(i) Collector/Addl. Collector

(ii) Asstt. Collector.

(iii) Dy. Collector.

(iv) Tahsildar.

Drug Department:-

(i) Drug Controller

(ii) Asstt. Drug Controller

(iii) Drugs Inspector.

According to the learned State counsel the notification aforesaid includes Sub-Inspector of Police and in the present case, Rajesh Tiwari is the

Sub-Inspector of Police who effected search and seizure and as such, according to him, there is no irregularity or illegality.

The words in Section 50 of the Act are ""Gazetted Officer"". The question arises as to what is Gazetted Officer. The authorities are not at variance

at the point. The word ""Gazetted"" is not defined in the Act. In such a situation, the help from the Dictionary may be taken, though the Dictionaries

are not dictates of statutes. The word ""Gazette"" is defined in the General Clauses Act, 1897 (X of 1897) in Section 2(39) which is extracted below

:-

(39) ""official Gazette"" or ""Gazette"" shall mean the Gazette of India or the Official Gazette of a State:

In the M. P. General Clauses Act, 1957 (Act No. 3 of 1957), the word ""official Gazette"" means the official Gazette of the State of Madhya

Pradesh;

The word ''Gazette"" in ""The Shorter Oxford English Dictionary"" (By William Little), Third Edition at page 781, is defined and the word to be

gazetted is also mentioned. The word ""Gazette"", as per this Dictionary, means ""To publish in a gazette"" and the word ""To be gazetted"" means to be

announced in the official gazette as appointed to a command, or the like. But the meaning of the word ""To be gazetted out"" an officer means a

person whose resignation is announced in the Gazette.

The word ""Officer"" is also not defined either in the Act, the Central General Clauses Act or in the M.P. General Clauses Act but the ""officer

means a person who is the holder of an office. In the Dictionary (supra) at page 1362, the word ""officer"" is defined as one to whom the charge is

committed or who performs a function, a minister, an agent, or one who holds an office, post or place, or one who holds a public, civil, or

ecclesiastical office.

The learned counsel for the appellant submitted that the Assistant Sub-Inspector is not the Gazetted Officer and as such, he was not the person,

even otherwise, authorised under the law. Such a submission is sans substance. u/s 7 of the Act, the Sub-Inspector of Police is appointed as a

person under the Act and he comes within the category of the person u/s 42 of the Act as he has been empowered for the purpose of the Act.

Thus, P.W. 5 Sub-Inspector of Police, Rajesh Tiwari is the Gazetted Officer, as the appointment of the persons empowered under the Act are

notified in the Gazette and as such, for the purpose of the Act, he is the Gazetted Officer.

Now the question for consideration in the present case is not the person or officer who took the search was a Gazetted Officer, within the meaning

of Section 50 of the Act, or not but the question for consideration is whether the accused was made known about his right in advance to the search

effected and the material on record indicates that the accused was not apprised of his right, as available to him under the law that he has a right to

be searched either by the nearest Gazetted Officer or the nearest Magistrate. Learned Counsel for the State submitted that the Sub-Inspector of

Police P.W. 5 Rajesh Tiwari was the Gazetted Officer within the meaning of Section 7 of the Act and was duly authorised to effect search and

since the person to be searched had given his consent and since he (the accused) had no objection of being searched, in such a situation, the

argument advanced by the learned counsel for the appellant loses its weight.

The requirement of the law here in the present case is not the authority of the person who is effecting search of or seizure or search or seizure

effected by such a person is valid or invalid. In the present case, the controversy is as to whether the accused was made known about his right,

available to him under the law, or not. As already stated above, the Sub-Inspector of Police P.W. 5 Rajesh Tiwari was duly authorised for the

purpose and was the proper officer as mentioned u/s 42 of the Act for the purpose of section 50 of the Act but the position is different, as it relates

to the trust of the accused person and the Legislature has given the option to the accused person either to get himself searched before a nearest

Gazetted Officer as provided u/s 42 of the Act or the nearest Magistrate. The word ""Gazetted Officer"" and the ""Magistrate"" in the context of the

scheme of the Act u/s 50 of the Act has been used in a distinct sense. A Magistrate is necessarily a Gazetted Officer and a Gazetted Officer is not

necessarily a Magistrate as the Magistrate is appointed under the Code of Criminal Procedure whereas the Gazetted Officer is not appointed

under any special particular Act or Code. He can be appointed under various Acts. The Legislature has given the option to the accused person

either to get himself searched by a nearest Gazetted Officer as provided u/s 42 of the Act or the nearest Magistrate, and Section 50 of the Act

requires the person effecting search to make the person to be searched known about his such right available to him under the law. In the present

case, the accused was not made known about his such right available to him under the law. Thus, the submission that the Sub-Inspector P.W. 5

Rajesh Tiwari was the Gazetted Officer within the meaning of Section 50 of the Act and was duly empowered u/s 42 of the Act has no relevance

in the context of the controversy in the present case.

Learned State counsel further submitted that in a situation where the person effecting a search and seizure u/s 50 of the Act and empowered u/s 42

of the Act and the accused person, after knowing it well that he is the authorised person within the meaning of that section, gives his consent to be

searched by such person, then, what would be the position under the law. In Section 50 of the Act, after the words ""If such person so requires"",

the word ""take"" is used and the word ""take"" has to be given meaning that the accused person has to be escorted either to the Gazetted Officer as

authorised u/s 42 of the Act or the nearest Magistrate for search to be conducted or to be carried. It is a settled principle that the Legislature

cannot be expected to use the surplus words. However, in the present case, it requires no consideration as it is a hypothetical position not having

any bearing upon the context of the case and as such I decline to express any opinion.

In the case relied on (supra) the requirement of Section 50 has been held to be mandatory, and what is mandatory that cannot be avoided. There is

no question of any relaxation. In considering whether a provision in a statute is mandatory and the effect of non-compliance of the same, the Courts

should keep in mind the real intention of the legislature keeping in view the whole scope of the Act and the particular provisions to be construed in

the context. Mandatory violation is not curable whereas directory violation is curable.

Since in the present case, I find that the mandatory requirements of law u/s 50 of the Act have not been satisfied and as such, it cannot be held that

the proceedings held under the Act regarding the search were held according to law. On account of the violation of the specific mandatory

requirement of law, the action of search and seizure cannot be justified and consequently the entire proceedings become null and void.

It may be mentioned that the learned counsel for the appellant, at the outset, volunteered for not pressing the submissions Nos. 2 and 3.

Accordingly, the appeal is allowed. The conviction and sentence as passed against the appellant is set aside and consequently he is acquitted of the

offence as charged. He be released forthwith from jail if not required in any other crime.