AMIRI ALI LIGAGA v. STATE OF DELHI — 1995 DIGILAW 892 (DEL)

J. K. MEHRA ( 1 ) I have heard the parties. This is an appeal directed against the order of conviction dated 18. 9. 1993, passed by Mr. Kuldip "singh, ASJ Delhi. The appellant has been convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a term of ten years plus a fine of Rs. 1 lakh, in default whereof rigorous imprisonment for another two years. ( 2 ) BRIEFLY stating, the facts of the case are that on 28. 1. 1989, in She evening there was an information that Tanzanian national will come with a heavy quantity of smack. On this information, raiding party was organised. Mr. A. C. Sharma, ACP, Crime Branch with the informer reached Kuldip Hotel, Paharganj, New Delhi and held a Nakabandi. At about 9. 45 p. m. , one Negro came from Paharganj and another Negro was found coming from the eastern side of Paharganj. One Negro, coming from eastern side, Amiri Ali Ligaga passed on the polythene bag to other Negro, Emanauely Murd Aiseleph, which was seized and it contained 600 gm. of smack. The appellant was searched in the present case straightaway without being informed of his right that he, if so desired, could be searched in the presence of a gazetted officer or a Magistrate. Admittedly, no such option was given in the present case. There are some other points also urged before me, but it will not be necessary in the light of the above facts to dwell upon those grounds because in my opinion, this appeal can be disposed of on the question of non-compliance of the mandatory provisions of Section 50 of NDPS Act by the officers, who took a personal search of the appellant. ( 3 ) SECTION 50 of NDPS Act reads as under:- "50. Constitutions 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 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. (1) When any officer duly authorised under Section 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 anyone excepting a female. " ( 4 ) ACCORDING to provisions of Section 50, the accused must be informed of his right that if he so wishes, he can be searched in the presence of the gazetted officer or the nearest Magistrate. It is not disputed that no such information by a written notice or otherwise as contemplated under Section 50 NDPS Act, was given to the appellant. !n the Ruqqa, it is stated that option under Section 50 of NDPS Act was not given to he appellant. This Ruqqa has been prepared after the search had been conducted. This is only one sided version. There is no witness to the Ruqqa prepared by the police. There is also no reference for this Ruqqa in the cross-examination of the accused. Even Fard Jamatalashi is vague and silent about such an option having been offered. In the case of State of Punjab Vs. Balbir Singh, reported as JT 1994 (2) SC 108, the Hon ble Supreme Court has held that it was imperative 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. The Hon ble Supreme Court has held this provision to be mandatory and its non-compliance would vitiate the trial. ( 5 ) IN another case of Satish alias Bombaiya Vs. The Hon ble Supreme Court has held this provision to be mandatory and its non-compliance would vitiate the trial. ( 5 ) IN another case of Satish alias Bombaiya Vs. State, reported as 44 (1991) DLT DLT 561 where a limited option of being searched before gazetted officer was given, this Court has held that there was a non compliance of mandatory provision of the Act and the consequent conviction of the accused was set aside. I have already held in Cri. Appeal No. 54/91 entitled "sri Krishan Vs. State" that even partial option does not amount to compliance with Section 50 of NDPS Act. I had agreed with the ratio of the aforesaid judgment that a partial option does not amount to compliance with the provisions of Section 50, which have been held by Hon ble Supreme Court to be mandatory in the case of State of Punjab Vs. Balbir SIngh (supra) must be fully complied with. Same was the situation in the case of Chameli Devi Vs. State, reported as 1993 (2) Chandigarh Criminal Cases 146, which was also a case of partial option and it was held to be amounting to non-compliance with the mandatory provisions of Section 50 of the Act. IN the cases of Jagdish Prasad Vs. State, reported as 1994 (3) AD (Delhi) 113 and Mukesh Vs. State (Delhi Administration), reported as 1994 (3) Crimes 337 also, the accused was informed that if he wanted, the search could be conducted in the presence of a gazetted officer. This potion was held to be a partial offer limiting the choice having the effect of non-compliance of the mandatory provisions of Section 50, which resulted in the order of acquittal. In the case of Mohinder Kumar Vs. State, Penal, Goa, reported as AIR 1995 SC 1157 even in the cases of chance recovery, that is if a police officer, without proof information, makes a search and during such search, he stumbles on a chance recovery of a Narcotic or Psychotropic substance, then from that stage onwards, the investigation must be carried out in accordance with the provisions of the Act including Section 42 and 50. In the present case, it cannot be held to be a case of such chance recovery. ( 6 ) IN the present case, P. W. 5, Mr. Navin Bhatia, Travel Agent; P. W. 6, Mr. In the present case, it cannot be held to be a case of such chance recovery. ( 6 ) IN the present case, P. W. 5, Mr. Navin Bhatia, Travel Agent; P. W. 6, Mr. S. D. Sharma, ACP; P. W. 7, Mr. Ram Singh, Anti Terrorist and P. W. 9, Mr. Ram Sarup, Sl, Crime Branch were examined on the question of notice under Section 50 of the Act. Their statements in this regard are reproduced below:- P. W. 5 "they were told about secret information that they were suspected to be having some drugs. They were told that if they like, their search can be taken before a Magistrate. In the meantime, one SD Sharma, ACP came there. He introduced himself as Gaz, officer to the ace. Inside the bick poletherne bag there was another bag which was found to be containing smack. " P. W. 6 "i disclosed my identity to the acc being a Gaz. officer and that if they like, they can search out person, but they declined. The black polethene bag was checked by the 10 and was found to be containing smack. Contents wee weighed and found for be 600 gms 20 grams was taken as sample. Sample and rest of the smack were sealed with the seal of MRS. Thereafter I had left the spot, because I had with the informer to another place. " P. W. 7 "they were told that the search can be effected in presence of a gazetted officer. Shri S. D. Sharma Public Witness was called and his identity disclosed to the ace. as Gaz. officer. He also disclosed his identity to accd. The accd. were told that they can searchperson of raiding party members, but they declined the offer. " P. W. 9 "the ACP then had also asked the accused persons that they have a right to be searched before the Magistrate of a G. O. but the accused declined. Then the packet from the hand of the accused was recovered. " ( 7 ) THE aforesaid statements are contrary to each other. ( 8 ) P. W. 7, Mr. Ran Singh, who is also the authour of Ruqqs, has stated differently in the Ruqqa that the accused was given the notice under Section 50 of NDPS Act. His own statement is contrary to what he recorded in the Ruqqa. " ( 7 ) THE aforesaid statements are contrary to each other. ( 8 ) P. W. 7, Mr. Ran Singh, who is also the authour of Ruqqs, has stated differently in the Ruqqa that the accused was given the notice under Section 50 of NDPS Act. His own statement is contrary to what he recorded in the Ruqqa. P. W. 5 also speaks of partial option. P. W. 6, who was a gazetted officer, also does not talk of complete option having been given. Only P. W. 9 talks of the option having been given by P. W. 6. But P. W. 6 in his own statement does not say so as is apparent from the statements quoted above. As such, the statement of P. W. 9 does not inspire confidence. From the above in my opinion, there is no compliance with the mandatory provisions of Section 50. There has been non-compliance of Section 50 of the Act. The accused was given no complete potion that if he so wanted, he could be searched before a Gazetted Officer or Magistrate. He was only asked to search Raiding Party members or at best told of the presence of the Gazetted officer. This is no compliance with Section 50 of the Act. ( 9 ) EVEN in the statement recorded under Section 313 Cr. P. C. , the accused was not put a specific question as t whether the accused and his co-accused, when Mr. S. D. Sharma, ACP introduced himself as a Gazetted Officer, wanted to be searched in the presence of a Gazetted Officer or Metropolitan Magistrate. He was only asked as to whether he or his co-accused wanted to search the Raiding Party. The appellant replied in negative even to the said question. I think, there is no doubt about non-compliance with the provisions of Section 50 of NDPS Act. ( 10 ) IN view of the judgment of the Hon ble Supreme Court and the various judgments, referred to hereinabove, and my own judgment in Cri. Appeal No. 54/91 (supra), the irresistible conclusion in the present case in that no potion was given t the appellant, which amounts to non-compliance with the provisions of Section 50 of NDPS Act and such non-compliance would inevitably invite the setting aside of the order of conviction. Appeal No. 54/91 (supra), the irresistible conclusion in the present case in that no potion was given t the appellant, which amounts to non-compliance with the provisions of Section 50 of NDPS Act and such non-compliance would inevitably invite the setting aside of the order of conviction. It was also not a case of chance recovery, but a recovery effected on the prior information even though the name of the carrier of narcotics was not available to the police. But the fact that it was known to them that Tanzanian national will come with a heavy quantity of smack, is clear enough information, which was received prior to the actual alleged recovery. For that reason,the argument that it was an absolute chance recovery and the authorities had no prior information cannot be accepted. ( 11 ) THE result of the above discussion is that the appeal is allowed. The trial is held to have been vitiated on account of non-compliance with the provisions of Section 50 NDPS Act: the order of conviction and sentence are set aside and the appellant is acquitted of the charges. He would be released forthwith, if not required to be detained in any other case. ( 12 ) IN view of the above finding, it is not necessary to deal with other ground raised. ( 13 ) A copy of this order be sent to Superintendent, Central Jail. Records be also sent back forthwith.