State of H.P. vs Gurdeep Singh

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 31st July, 2003 passed by the learned Sessions Judge, Chamba in Sessions Trial No. 29 of 2002 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 NDPS Act). Briefly stated the facts of the case are that on 2nd February, 2002, PW-10 ASI Rajmal, alongwith PW 2 SPO Tek Chand, HHC Bal Krishan and Constable Ravinder Kumar were present at Tilmili More. At about 11:30 A.M, a person was seeing coming from Tikrigarh side towards Nakror. On seen the police officials, this person got perplexed and tried to run back. This aroused suspicion of the police officials who apprehended the person. On inquiry, he disclosed his name as Gurdeep Singh, son of Narinder Singh (accused). One person, namely, Bhumi Ram (PW1) was present at the spot and in his presence the search of the accused was done.

The prosecution case is that the accused was carrying a rucksack on his back and an option was given to the accused in terms of Section 50 of the Act as to whether he would like to be searched by the police officials, gazetted Officer or before the Magistrate. The prosecution case is that the accused agreed to be searched by the police officials.

Admittedly, the contraband which was allegedly recovered was not recovered from the rucksack being carried by the accused. After the search of the rucksack revealed no illegal item, body search of the accused was carried out and it was found that he was carrying another rucksack inside his shirt and it is from this second rucksack which was being carried inside the shirt that the contraband was recovered. This is thus a case which is squarely covered by Section 50 of the Act being a case of personal search. Therefore, the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, would definitely apply.

The main question is whether there is sufficient compliance of Section 50 in as much as whether the accused was informed that he had a right to be taken to a Gazetted Officer or a Magistrate. The question whether the accused must be informed that he has a legal right to be searched before a Magistrate or Gazetted Officer and the effect thereof is no longer res integra.

The Constitution Bench of Apex Court in Vijaysinh Chandubha Jadeja Vs. State of Gujarat, dealt with the question as to how the provisions of Section 50 have to be complied with. The Apex Court held that Section 50 is mandatory and casts a duty upon the Investigating officer to inform the accused that he had a legal right to insist that he be searched either by a Gazetted Officer or a Magistrate. The Apex Court interpreted Section 50 in the following manner:- 24. Although the Constitution Bench in Baldev Singh case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; 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 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 the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given u/s 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.

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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 authorization, 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 sub-section(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 sub-sections 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 authorized officer to send a copy of the reasons recorded by him for his belief in terms of sub-section (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial.

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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 authorized 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 provided to him under the said provision.

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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 sub-section (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.

In the present case the witnesses have not stated that the accused was informed that he had a legal right to be searched before the gazetted officer or a Magistrate. Even the consent memo Ext. PA only shows that an option was given, but the accused was not informed that he had a legal right to be searched before a Magistrate or a Gazetted Officer. Merely giving an option but not informing the accused of his legal right is not sufficient. Therefore, on this ground alone the appeal has to be rejected. We find no merit in this appeal, which is accordingly dismissed. Bail bonds discharged.