Smt. Premvati & Others vs Ramlakhan Sagar

Criminal Appeal No.1443/13 and Criminal Appeal No.1624/13 having arisen from a common judgment, have been heard analogously and are being disposed by this common judgment.

Appellant Shahnawaz Khan (Cr.A. No.1624/13) and Firoz Khan (Cr.A. No.1443/13) have been convicted under Section 8/21(b) of Narcotic Drugs and Psychotropic Substances Act, 1885 (for short ''the Act'') and each has been sentenced to undergo 7

years RI and to pay a fine of Rs.75,000/- and in default of the payment of fine further to undergo one year''s RI.

Prosecution story, as having emerged during trial, briefly stated, is that on 20.12.2009 around 12.30 p.m. Pratik Roy (P.W.8), the then Station House Officer, Narcotic Cell, Indore received a secret information that two persons namely, Shahnawaz Khan and Firoz are coming to Indore on a motorcycle bearing registration No.R.J.-27 S.F.-4084 and that they are having around ? kg brown sugar in their possession which they will deliver to a person at Shiv Vilas palace, behind Rajwada, Indore. The information so received was recorded by Pratik Roy (P.W.8), vide memo Ex.P/1. Intimation, vide Ex.P/2 in this regard was immediately sent to Additional Superintendent, Police Narcotics, Indore. A raid party was constituted and thereafter Pratik Roy (P.W.8) with the members of raid party and panch witnesses Anup Pandey (P.W.11) and Rajkumar (P.W.12) reached at the given place. At around 1.50 p.m. Pratik Roy (P.W.8) saw two persons coming on a motorcycle of given discription. They were intercepted by the police near the shop namely ''Apsara Dresses''. Thereafter, Pratik Roy (P.W.8) informed both of them that he has credible information about contraband being carried by them and, therefore, he would like to search them. The appellants were further informed, vide notice Ex.P/14 that they can get themselves searched before the Magistrate or a gazetted officer. On consent being given by both the appellants to be searched by Pratik Roy (P.W.8), he after complying with necessary formalities carried out search of appellant Shahnawaz Khan and Firoz Khan. In this

search a polythene pouch was found in the right packet of pant worn by appellant Shahnawaz Khan having powder like substance lying within it. Appellant Firoz Khan was also searched and another polythene packet was found lying in the packet of his jacket; again having substance like dark brown powder. On physical examination, it was found that the substance lying in both the polythene bags is brown sugar. On weighment each packet was found containing 250 grams of brown sugar. Two samples of 5 gram each were drawn from each packet and the samples so drawn and the remaining substance was sealed on the spot after being marked A, A/1 & A/2 and B, B/1 & B/2. The same were seized, vide seizure memo Ex.P/23. The appellants were arrested, vide Ex.P/25 ? P/26 and were further apprised about grounds of their arrest. The motorcycle found in the possession of the appellants was also seized on the spot. Thereafter, Pratik Roy (P.W.8) came back to the Police Station. The contraband was deposited in the ''Malkhana''. A detailed report regarding search, seizure and arrest was sent to Additional Police Superintendent, Narcotics, Indore, vide Ex.P/3. The witnesses were interrogated. The appellants on interrogation informed that they have procured the contraband from one Bablu and that the same was to be delivered to one Rahat Khan, resident of Indore. It was further found that the motorcycle belonged to one Sher Khan. An FIR in this regard was registered. The contraband was produced before Executive Magistrate Sudeep Meena (P.W.4), who drew one sample from each packet which were respectively, marked as A/3 and B/3. Two of the samples viz. A-1 and B-1 were sent for forensic examination to Regional Forensic Laboratory, Indore. The Assistant Chemical Examiner,

vide report Ex.P/43 opined that the substance contains 17.9% diacetyle morphine and, therefore, the same was heroine i.e. brown sugar.

After usual investigation, a charge-sheet was laid before the Competent Court against four persons namely, appellant Shahnawaz Khan and Firoz Khan and two other persons namely, Gulam Sarver and Sher Khan said to be absconding.

The learned trial Court framed charge under Section 8/21(c) of ''the Act'' against the appellants, who abjured guilt and claimed to be tried. The prosecution in order to bring home the guilt examined as many as 12 witnesses including Pratik Roy (P.W.8). Constable Bhupendra Singh (P.W.1) and Constable Jasbir Singh (P.W.7) are said to be members of the raiding party, while Anup (P.W.11) and Rajkumar (P.W.12) are said to be the panch witnesses. Apart this documents, Ex.P/1 to Ex.P/52 were also marked in evidence.

The incriminating circumstances appearing against the appellants in prosecution evidence were brought to their notice during their examination under Section 313 of ''the Code''. The appellants denied all the incriminating circumstances and submitted that they have been falsely implicated by police on account of enmity, however, no oral evidence was adduced by the appellants in support of their plea.

The learned trial Court on the basis of evidence

adduced before it, vide the impugned judgment convicted and sentenced the appellants as stated herein before.

The conviction is challenged primarily on the ground that the mandatory provisions contained in Section 50 of ''the Act'' were not complied with in letter and spirit inasmuch the appellant was not apprised of his legal right to be searched in presence of a gazetted officer or a Magistrate. A joint notice was allegedly given to both the appellants which is defective. Placing reliance on the decisions rendered by the apex Court in K. Mohanan vs. State of Kerala, 2001(2) EFR 21 (Supreme Court), State of Rajasthan vs. Parmanand, 2014 Cr.L.J. (SC) 1756 and Vijaysingh Chandhubha Jadeja vs. State of Gujrat, 2011(1) SCC 609, it is contended that appellants deserve to be acquitted because of noncompliance of Section 50 of ''the Act''.

Per contra, it is submitted by learned Public Prosecutor that as regards compliance of Section 50 of ''the Act'', notice Ex.P/6 was given to the appellants requiring them to opt for their search being conducted before a gazette officer or a Magistrate. As they consented for being searched before Pratik Roy (P.W.8), therefore, it cannot be said that the provisions of Section 50 of ''the Act'' were not complied with. It is further submitted that the learned trial Court on due appreciation of evidence on record has found the appellants guilty and no ground is made out to interfere with the same, therefore, the appeal is liable to be dismissed.

I have bestowed my careful consideration to the

submissions raised at the Bar and have also gone through the record. The question for consideration is whether the impugned judgment and order is in accordance with the law and facts of the case? In view of the arguments raised before me, the sole question is whether Section 50 of ''the Act'' was complied with in letter and spirit?

Section 50 of ''the Act'' to the extent it is relevant reads as under :-

"50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as 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) xxx xxx xxx"

Section 50 clearly provides that when any officer duly authorized under Section 42 of ''the Act'' is about to search any person under the provisions of Section 44 or Section 43 of ''the Act, he shall, if such person requires, take such person without unnecessary delay to the nearest Gazetted Officer of any departments mentioned in Section 42 or to the nearest Magistrate. The provisions of Section 50 were interpreted by a constitution

Bench of the apex Court in State of Punjab vs. Baldev Singh, 1999(6) SCC 172. The relevant observations run as under :

"(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 concerned person 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 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 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;

xxx xxx xxx

(5) 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 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;

(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;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used 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 by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search."

The matter was again considered by another Constitution Bench in the case of Vijaysingh Chandhubha Jadeja (supra), wherein it was held that Section 50 of ''the Act'' casts a duty on the empowered officer to inform the suspect of his right to be searched in the presence of a gazette officer or a Magistrate, if he so desires. Answering the question as to whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazette officer can be said to be due compliance with the mandate of the said section; the apex Court held that provisions of Section 50(1) of ''the Act'' make it imperative for the empowered officer to inform the person concerned about the existence of his right that if he so requires, he shall be searched before a gazette officer or a Magistrate, that failure to inform the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to

conduct his search before a gazette 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 the person during a search conducted in violation of the provisions of Section 50 of ''the Act''. The Constitution Bench further held that the concept of substantial compliance with the requirement of Section 50 of ''the Act'' is neither borne out from the language of Section 50(1) nor it is in consonance with the dictum laid down in Baldev Singh''s case.

In K. Mohanan vs. State of Kerala, 2001(2) EFR Page-21, the apex Court held as under :

"6. If the accused, who was subjected to search was merely asked, whether he required to be searched in the presence of a gazette officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defence adopted by the appellant at all stages was that Section 50 of the Act was not complied with."

In State of Rajsthan vs. Parmanand & Anr., 2014 CRLJ 1756, the apex Court considered that if a bag carried by the suspect is searched and his person is also searched, whether Section 50 of ''the Act'' will have application. The apex Court relying on Dilip & Anr. Vs. State of MP, (2007) 1 EFR (SC) 20 7, and

Union of India vs. Shah Alam & Anr., (2009) 16 SCC 644, held in this regard as under :

"12.Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand''s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application."

As regards joint communication of the right available under Section 50 of ''the Act'', it was held as under:

"14. In our opinion, a joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. These are minimum safeguards available to an accused against the possibility of false involvement. The communication of this right has to be clear, unambiguous and individual. The accused must be made aware of the existence of such a right."

In Parmanand''s case (supra), the suspect was also given an option of being searched before the Superintendent, who was a part of the raiding party. The apex Court held that it cannot be said to be proper compliance of Section 50. Relevant observations run as under:

"15. We also notice that PW-10 SI Qureshi

informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazette officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act."

From the aforesaid enunciation of law, it clearly emerges that the provisions of Section 50 of ''the Act'' should be complied with in letter and spirit. Each accused is required to be specifically apprised, orally or in writing, about his right to be searched either before a gazette officer or before a Magistrate. Even when the contraband is found to be lying in a bag held by the accused, if search of the person is also carried out, then compliance of Section 50 will be necessary.

In the instant case, notice Ex.P/14 which was given to appellants with regard to compliance of Section 50 of ''the Act'' reads as under :

"VERNACULAR MATTER OMITTED"

A bare reading of the contents of Ex.P/14 clearly reveals that the appellants were simply asked to opt whether they would like to be searched before the Magistrate or a gazetted officer. As a matter of fact they were not apprised about their right being searched before the Magistrate or a gazetted officer. Though, the contraband is said to have been recovered from a poly bag held by appellants, however, it is found that their personal

search was also carried out, therefore, in the light of dictum of law laid down in Parmanand''s case (supra), Section 50 of ''the Act'' was applicable.

Though, Jasbir Singh (P.W.7) in para-3 of the examination has tried to say that the appellants were apprised to their legal right to be searched before the Magistrate or a gazetted officer, however, there is a material omission in this regard in his police statement Ex.D/1. Apart this Pratik Roy (P.W.8) in para 18 and Bhupendra Singh (P.W.1) in para-3 have stated that the appellants were informed that if they wish they can opt for being searched before the Magistrate or a gazetted officer. In the light of the legal position extracted herein before, it cannot be said that provisions of Section 50 of ''the Act'' were complied with in letter and spirit.

In view of the law laid down by the apex Court in Parmanand''s case (supra), a joint notice is a defective notice which amounts to breach of Section 50 of ''the Act''. Apart this the contents of Ex.P/14 which have been extracted herein-before clearly indicate that the appellants were not apprised of their legal right to be searched before a gazetted officer or a Magistrate, rather they were simply asked whether they should like to be searched before the Magistrate or a gazetted officer. Apart that a third option for search byStation House Officer was also given to them.

Though a detailed discussion with regard to Section 50 of ''the Act'' is found in para 18-24 of the judgment, however, the

learned trial Court as a matter of fact has not considered all these aspects. Therefore, the conviction recorded against the appellants, which is solely based on the seizure of the contraband said to have been recovered from the possession of the appellants stands vitiated and, therefore, liable to be set aside.

Accordingly, this appeal is hereby allowed. The impugned judgment is hereby set aside and the appellants are acquitted with regard to offence under Section 8/21(b) of ''the Act''. Appellant Firoz is on bail. His bail bond and surety bond are hereby discharged. Appellant Shahnawaz is in jail. He shall be set at liberty forthwith if not required in any other case. A copy of this judgment be sent to the trial Court for compliance.