State of H.P. vs Bhag Singh

Deepak Gupta, Judge

This appeal by the State is directed against the judgment dated 2nd April, 2003, passed by the learned Sessions Judge, Kullu in Sessions trial No. 1172002 whereby he acquitted the accused of having committed an offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act).

The prosecution story in brief is that, P.W. 8, S.I Jagdish Chand received secret information that a person wearing a chocolate colour sweater was travelling in a bus from Bathahar to Banjar and was carrying some charas. The information was reduced into writing and sent to the S.P. Kullu vide wireless message EX. P.W. 2/A. Thereafter, P.W. 8 alongwith other police officials and two independent witnesses formed a raiding party. When the raiding party reached at Khundan mor, the Pvt. Bus was stopped. The accused was accosted and apprised that the police officials were suspicious that he was carrying some charas and an option was given to him as to whether he was willing to give his search before the Magistrate or a Gazetted Officer. The accused consented to be searched before the police and on search by the I.O., charas was found tied to the legs of the accused.

Undoubtedly, this is the case of personal search and the main question that arises for consideration is whether the provisions of Section 50 of the NDPS Act have been complied with or not. A constitution bench of the Apex Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, held as follows:

27.It can, thus, be seen that apart from the fact that in Karnail Singh, 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 does not depart from the dictum laid down in Baldev Singh case insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in subsection(1) of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted subsections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, subsection (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 subsection (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial.

28....

29.In view of the foregoing discussion, we are of the firm opinion that the object with which the right u/s 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article 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 provide to him under the said provision.

30...

31.We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said section in Joseph Fernandez and Prabha Shankar Dubey is neither borne out from the language of subsection (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf.

It is, thus, clear that the accused not only must be informed that if he so desires, he can be taken to the nearest Gazetted Officer or Magistrate but he also must be informed that he has a legal right in this regard. In the present case, the consent memo itself (EX. P.W. 4/A) shows that he was only told that if he wanted, he could get his search done before the Magistrate or Gazetted Officer. He was not informed that he has a legal right in this behalf. Therefore, on account of non compliance of section 50 accused has to be acquitted.

In view of the above discussion, we find no merit in this appeal, which is accordingly rejected. Bail bonds discharged.