POORAN SINGH v. STATE OF U P — 1997 DIGILAW 374 (ALL)

J. C. GUPTA, J. 2. This is second bail application moved on behalf of the applicant. The earlier bail application has already been rejected by the order of this court dated 6-12-96. 3. Learned counsel for the applicant has argued that while disposing of earlier bail application this court had not considered an important aspect of the case regarding non-compliance of the provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short N. D. P. S. Act ). He submitted that before taking search of the applicant the sub-inspector had come to know of the presence of smack with the accused and therefore it was mandatory for him to have obtained in writing from the accused that he has been informed of his valuable right of being searched in the presence of a Gazetted Officer or a nearest Magistrate as provided under Section 50 of the N. D. P. S. Act. The learned Counsel placed reliance on a few decisions of the Apex Court namely State of Punjab v. Balbir Singh 1994 (3) S. C. C. 299 : 1995 JIC 382 (SC); State of Punjab v. Jasbir Singh, (1996) 1 S. C. C. 288 and State of Punjab v. Labh Singh, 1996 J. I. C. 1012. 4. It is now well-settled that provisions of Section 50, N. D. P. S. Act are mandatory. In the case of All Mustaffa Abdul Rehman Moosa v. State of Kerala, J. T. 1994 (6) S. C. 326 : 1995 JIC 500 (SC), it was held that if the search is conducted in pursuance of a prior information, compliance of the provisions of Section 50 is mandatory. Section 50 confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires and the failure to provide that option to the accused vitiates his conviction. It is imperative on the part of the Officer to inform the person to be searched of his right that if he so requires his search may be taken before a Gazetted Officer or a Magistrate. It is imperative on the part of the Officer to inform the person to be searched of his right that if he so requires his search may be taken before a Gazetted Officer or a Magistrate. Similarly in the case of Balbir Singh (supra) it was held that on prior information the empowered Officer or authorised officer which acting under Section 41 (2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate. 5. A plain reading of the provisions of Section 50, N. D. P. S. Act indicates that before taking search under the provisions of the N. D. P. S. Act, it is incumbent upon the Officer taking search to apprise the accused of his valuable right that if he so desires the search could be taken before a Gazetted Officer or a Magistrate. Such a person is thus entitled to be informed of such a right before the search is actually taken and since the provisions of N. D. P. S. Act visit with serious penal consequences the provisions have been held to be mandatory and they have to be complied with in the manner provided under law. In Balbir Singhs case (supra) it was also held that compliance of the provisions of Section 50, N. D. P. S. Act is required only in those cases where search is taken in pursuance of a prior information regarding the presence of Narcotic Drugs or Psychotropic Substances. Where the Police Officer without any such prior information as contemplated under the provisions of N. D. P. S. Act makes a search or arrests a person in the normal course of investigation into an offence or arrests a person as a suspect under the provisions of the Cr. P. C. and when search is taken of such a person, at that stage Section 50 will not be attracted. If during such a search or arrest there is a chance recovery of Narcotic Drugs or Psychotropic Substances, then the question of making compliance of the provisions of Section 50 does not arise. Of course after such a recovery is made, the Arresting Officer has to act in accordance with other provisions of the N. D. P. S. Act. 6. If during such a search or arrest there is a chance recovery of Narcotic Drugs or Psychotropic Substances, then the question of making compliance of the provisions of Section 50 does not arise. Of course after such a recovery is made, the Arresting Officer has to act in accordance with other provisions of the N. D. P. S. Act. 6. From the above it is thus clear that provisions of Section 50, N. D. P. S. act are attracted only in a case where the Officer take search in pursuance of a prior information regarding the presence of Narcotic Drug or Psychotropic Substance and in that case it is incumbent upon that Officer to apprise the person to be searched to inform him that if he so requires his search shall be taken before a Gazetted Officer or Magistrate. This duty is to be discharged before search is actually taken and if such person exercise that right search has to be made in the presence of a Gazetted Officer or a Magistrate. No such duty is cast upon the officer where he takes search under the provisions of Cr. P. C. and there is a chance recovery of Narcotic Drug or Psychotropic Substance. The only requirement in Section 50, N. D. P. S. Act is that the Officer taking search should make the person concerned aware of his aforesaid right. There is nothing in this Section that such an information is necessarily to be given in writing or that compliance of the said Section would not be deemed to have been made if no such writing is obtained. Neither the Act nor the Rules specify any particular from of notice to be given to such person, informing him that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate. 7. In the case of Jasbir Singh (supra), the Apex Court refused to interfere with the order of acquittal which was based on appreciation 01 evidence. While recording the order of acquittal the trial Court took into consideration that the Arresting Officer has not a prepared any note in writing that he had informed the accused of the valuable right vested in him under the provisions of Section 50, N. D. P. S. Act. While recording the order of acquittal the trial Court took into consideration that the Arresting Officer has not a prepared any note in writing that he had informed the accused of the valuable right vested in him under the provisions of Section 50, N. D. P. S. Act. It was observed that it would be open to the Search Officer to inform the suspect at the time of search that he is entitled to be searched in the presence of a Gazetted Officer and also to take in writing from the accused that he has been so informed and the accused has waived that right, which would form part of the record as contemporaneous evidence. In Labh Singhs case (supra) the absence of such a writing in addition to other factors was found sufficient to uphold the order of acquittal. The Apex Court in that case observed: "each case should be considered in the light of the facts and circumstances in which the contraband was seized, viz. , time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport or place of concealment, whether there was proper opportunity to the police to secure the presence of a Gazetted Officer; whether the delay in search and seizure would result in the escape of the accused from arrest or contraband would be destroyed or whisked away and host of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. The Court has to consider each case on its own setting. In view of the absence of any writing from the accused to the effect that the accused was informed of his right and that the same was waive taken by the Officer who conducted the searched and seized the contraband in view of the long delay that has taken place. " 8. As already observed above the provisions of Section 50, N. D. P. S. Act do not speak that information as contemplated in the said Section has necessarily to be given to the accused in writing nor any form of notice has been prescribed under the Act or under the Rules. Whether the accused was informed of his right or not therefore, would depend upon the facts and circumstances of each case. Whether the accused was informed of his right or not therefore, would depend upon the facts and circumstances of each case. It is true that if a record in writing is made, that may strengthen the case of the prosecution but absence of such a record will not necessarily lead to an inference that compliance of Section 50 has not been made. Even in the absence of such a writing in the facts and circumstances of a particular case, the Court may still find no infirmity in the prosecution case. The answer to the question whether accused was apprised of that right or not would therefore depend upon the facts and circumstances of the case and can be finally arrived at only after the evidence is taken on record during trial. 9. Learned A. G. A. argued that in the present case the accused/applicant was arrested all of a sudden as a suspect under the provisions of the Cr. P. C. therefore Section 50, N. D. P. S. Act was not attracted to the facts of the case. He further argued that in any view of the matter the recovery memo itself contains the averment that the applicant was apprised of the aforesaid right by the Arresting Officer before he was searched and the applicant waived his right. 10. Since in the instant case evidence is yet to be recorded by the trial court, it may not be just and proper for this court to make any final comments either way on the above contentions raised by the applicants counsel and the learned A. G. A. as the same may prejudice the trial, but for the purposes of disposal of this bail application it is suffice to state that in the circumstances of the case, in my opinion the applicant does not deserve bail. 11. For the above reasons, this application is rejected. .