State of H.P. vs Rekha Devi

Deepak Gupta, J.—This appeal by the State is directed against the judgment dated 2.4.2003 passed by the learned Sessions Judge, Kullu in Sessions Trial No. 83-02 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 21.3.2002 at about 5.15 p.m. PW-9 ASI Narain Singh alongwith other police officials were present at Khunan Maur in connection with patrolling duty. Accused Rekha Devi and her husband Des Raj were seen coming from Bathahar Gosheni side. Accused No. 1 was wearing a shawl and accused No. 2 was having a bag in his hand. The accused did not appear to be residents of the area and therefore they were asked to stop. The police officials asked from them their names and also asked what they were doing in Banjar. They failed to give a satisfactory answer. The police therefore started suspecting that they may be involved in the business of sale and transport of contraband.

PW-9 thereafter sent a message to the Police Station that a lady constable be sent, so that search of accused Rekha Devi could be got conducted.

PW-7 Lady Constable Pinki Devi was deputed and she reached at the spot at 8.00 p.m. Thereafter, the accused were given option that they could be searched either before a Magistrate or a Gazetted Officer or by the police official. Both the accused were searched by the police. Nothing was recovered from the search of the husband, but when the personal search of the lady was conducted, one polythene packet was found concealed under her left arm beneath the shawl. When the polythene packet was opened, it was found to contain 1 Kg. 950 grams of Charas. Two samples were drawn and after completing codal formalities, one sample was sent for Chemical Analyst, who opined that the sample was of Charas. It is not necessary to give all the facts in detail since we are of the opinion that this appeal can be disposed of on the short ground that there is non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act.

Even as per the police officials, the Charas was recovered pursuant to the personal search of the accused and, therefore, the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act would definitely apply. 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:-

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, sub-section (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 were informed that they had a legal right to be searched before the gazetted officer or a Magistrate. Even the consent memo Ext. PW5/C only shows that an option was given, but the accused was not informed that she has a legal right to be searched before a Magistrate or a Gazetted Officer. Merely giving an option but not informing the accused of their 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.