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1996 DIGILAW 119 (RAJ)

Raghbir Singh v. State of Haryana

1996-01-29

J.S.VERMA, S.P.BHARUCHA, SUJATA V.MANOHAR

body1996
Honble BHARUCHA, J. – Leave granted. (2). This appeal impugns the judgment and order of the High Court of Punjab and Haryana. It comes to be heard by a Bench of three Judges by reason of the fact that an order was made on 8.1.1996,in that behalf, having regard to the fact that the question was found to be of importance, namely, whether a person to be searched under Sec.50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") has a rights to be given an option of being searched either by a Gazetted Officer or by a Magistrate. (3). On 1.5.1991,a Police Party, led by the Station House Officer, Jakhal, upon information received, conducted a raid on the harvesting floor of the accused near village Puran Majira. The accused was found holding a bag in his hand, he was given the option of being searched by the said Police Officer or before a Gazetted Officer. The accused opted to be searched before a Gazetted Officer. He was then searched in the presence of Gazetted Officer and the bag he was carrying was found to contain opium. He was charged with an offence punishable under the Act and tried. The evidence of the prosecution was accepted. The trial Judge convicted the accused of the offence punishable under Sec. 18 of the said Act and he was sentenced to undergo rigorous imprisonment for term of ten years. The High Court, by the order that is impugned before us, upheld the conviction and sentence. It noted that the appellant has contended that the provisions of Sec.50 had not been complied with, but it found that the evidence showed that he had been asked whether he wanted to be searched before a Gazetted Officer and, when he expressed that desire, he was so searched. The conviction and sentence were affirmed. (4). The only argument which is advanced on behalf of the appellant before us is that indicated in the referral order. (5). The conviction and sentence were affirmed. (4). The only argument which is advanced on behalf of the appellant before us is that indicated in the referral order. (5). Section 50 reads thus:– "50 Conditions under which search of persons shall be conducted :- (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 43 he shall,if such person so requires, take such person without unneces- sary delay to the nearest Gazetted Officer of any of the department mentioned in Sec. 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-sec (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." (6). It is submitted on behalf of the appellant that an accused may be willing to be searched by a police Officer duly authorised under Sec.. 42, but if he is not, he must be given the option of being searched either before a Gazetted Officer or before a Magistrate. If the accused is not told that he can opt to be searched before a Gazetted Officer or before a Magistrate, the provisions of Sec. 50 are not satisfied. (7). Reliance was placed by learned Counsel for the appellant upon the decision in Saiyad Mohd. Saiyad Umar Saiyad vs. State of Gujarat (1), which was delivered by one of us, Bharucha,J., on behalf of a Bench of three Judges. It was submitted that the observations therein supported the aforesaid submission. In para 7 of the judgment this was said : "Having regard to the object for which the provisions of Sec.50 have been introduced into the N.D.P.S. Act and when the language thereof obliges the Officer concerned to inform the person to be searched of his right to be searched in the presence of Gazetted Officer or a Magistrate, there is no room for drawing a presumption under Sec. 114. Illustration (e) of the Indian Evidence Act, 1872.... Illustration (e) of the Indian Evidence Act, 1872.... Very relevant in this behalf is the testimony of the officer conducting the search that he had informed the person to be searched that he was entitled to demand that the search be carried out in the presence of a Gazetted Officer or a Magistrate and that the person had not chosen to so de- mand. If no evidence to this effect is given the Court must assume that the person to be searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the N.D.P.S Act was not established." Emphasis was laid by learned Counsel for the appellant upon para 10 wherein it was said : "Court dealing with offences under the N.D.P.S. Act should be very careful to see that it is established to the satisfaction that the accused has been informed by the officer concerned that he had a right to choose to be searched before a Gazetted Officer or a Magistrate. It need hardly be emphasised that the accused must be made aware of this rights or protection granted by the statute and unless cogent evidence is produced to show that he was made aware of such right or protection, there would be no question of presuming that the requirements of Sec. 50 were complied with." (8). The very question that is referred to us came to be considered by a Bench of two learned Judges on 22.1.1996 in Manohar Lal V.State of Rajasthan (2). One of us (Verma, J.) speaking for the Bench,held : "It is clear from Sec. 50 of the N.D.P.S. Act that the option given thereby to the accused is only to choose whether he would like to be searched by the officer making the search or in the presence of the nearest available Gazetted Officer or the nearest Magistrate has to be exercised by the Officer making the search and not by the accused." (9). We concur with the view taken in Manohar Lal case (supra). (10). Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment.It is, therefore, that the Act affords the person to be searched a safeguard. (10). Finding a person to be in possession of articles which are illicit under the provisions of the Act has the consequence of requiring him to prove that he was not in contravention of its provisions and it renders him liable to severe punishment.It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior Officer. The senior Officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available. (11). The option under Sec. 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word "nearest" in Sec. 50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior Officer, it is for the Police Officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer or Magistrate. (12). In the result, we find no substance in the only argument advanced before us on behalf of the appellant. (13). The appeal is dismissed. There shall be no order as to costs.