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Orissa High Court · body

2000 DIGILAW 423 (ORI)

Ahmed v. State of Gujarat

2000-08-25

G.B.PATTANAIK, UMESH C.BANERJEE

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JUDGMENT G. B. PATTANAIK, J. — Leave granted. 2. The appellant was tried by the learned Additional Ses¬sions Judge, Mahsana in the State of Gujarat, for the offence under Sec. 20-B(2) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”), as he was found in possession of 9 gm of charas on 10.5.1992 which he was selling outside his house. The learned Additional Ses¬sions Judge, on consideration of the prosecution evidence, came to the conclusion that the prosecution has been able to establish beyond reasonable doubt that charas was found from the pocket of the trousers of the accused, which weighed about 9 gm and as such the accused must be held to have committed the offence under Sec. 20(b)(ii) of the Act. He accordingly, convicted the accused of the said offence and sentenced him to undergo rigorous imprisonment for 10 years and a fine of rupees one lakh. On appeal by the accused, the High Court affirmed the conviction and sentence and hence the present appeal. 3. The prosecution case in a nutshell is that on receipt of certain information that the accused is dealing with narcotics, the empowered officer called the panch witnesses and raided the house of the accused. While the accused was sitting on a cot, the person of the accused was searched and from his pant pocket, 9 gm of charas was recovered, which later on was established as charas. The factum of recovery of charas from the pants of the accused is established through the panch witness PW I and the seizure list Ext. 6 and Ext. 17 but the said witness PW I in cross-examination candidly stated that the accused himself had requested for being taken to the Magistrate for being searched but the police had declared that it was not necessary. PW 2, the Senior Police Officer, also was examined in this case and he gave out the details about the raid and seizure as well as drawing of the panchnama. In assailing the conviction, the learned counsel for the appellant contended that the mandatory requirements of Sec. 50 of the NDPS Act have not been complied with inasmuch as notwithstanding the fact that the accused himself requested for being taken to the Magistrate for the purpose of search, the police did not accede to the same and, therefore, the conviction is null and void. 4. 4. The learned counsel appearing for the respondent, on the other hand, contended that in the case in hand, the search itself having been made by a gazetted officer namely PW 2, it cannot be said that there has been an infraction of Sec. 50 of the Act, and, therefore, the conviction cannot be held to be invalid. The question for consideration, therefore, is whether when a search is made by a gazetted officer, is it obligatory for the prosecu¬tion to inform the accused of his right to be searched before a gazetted officer or before a Magistrate, as provided under Sec. 50 of the Act. According to the learned counsel for the respondent, it is only when a search is made by an authorised officer under Sec. 41(2) of the Act, it is only then the provisions of Sec. 50 can be attracted but when a search is made by an officer of gazetted rank of the department of Central Excise, who is empowered under sub-sec. (2) of Sec. 41, then the provisions of Sec. 50 are not required to be complied with inasmuch as the empowered officer himself is a gazetted officer. According to the learned counsel for the appellant-accused, however the provisions of Sec. 50 are required to be complied with irrespective of the fact whether the search is being made by the empowered officer, who may be an officer of the gazetted rank or by an officer duly authorised by the empowered officer under Sec. 42 of the Act. To ensure fairness in the search itself and for compliance with Sec. 50 of the Act, no differentiation can be made whether the search is being made by the empowered officer, who obviously is an officer of a gazetted rank or the authofised officer, who may be a subordinate officer to whom the empowered officer authorises. To appreciate the point in issue, it is necessary to extract the provisions of Secs. 41, 42 and 50 of the Act : “41. To appreciate the point in issue, it is necessary to extract the provisions of Secs. 41, 42 and 50 of the Act : “41. Power to issue warrant and authorisation - (1) A Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of any person whom he has reason to believe to have committed any offence punishable under Chapter IV, or for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic sub¬stance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed. (2) Any such officer of gazetted rank of the departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer of the Revenue, Drugs Control, Excise, Police or any other depart¬ment of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under Chapter IV or that any narcotic drug, or psychotropic substance in respect of which any offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a constable, to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest a person or search a building, conveyance or place. (3) The officer to whom a warrant under Sub-sec. (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under Sub-sec. (2) shall have all the powers of an officer acting under Sec. 42. 42. (3) The officer to whom a warrant under Sub-sec. (1) is addressed and the officer who authorised the arrest or search or the officer who is so authorised under Sub-sec. (2) shall have all the powers of an officer acting under Sec. 42. 42. Power of entry, search, seizure and arrest without warrant or authorisation-(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the depart¬ments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the Revenue, Drugs Control, Excise, Police or any other de¬partment of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been comniitted or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset,- (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confis¬cation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have comniitted any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without af¬fording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under Sub-sec. (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. 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 unnecessary delay to the nearest gazet¬ted officer of any of the departments 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 fe¬male.” An analysis of the aforesaid provisions unequivocally indicates that under Sub-sec. (2) of Sec. 41, an officer of a gazetted rank of the Department of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or the Border Security Force can be empowered by a general or special order by the Central Government, conferring the power to arrest a person or search a building, conveyance or place, if he has reason to believe from personal knowledge or information that the person concerned has committed an offence punishable under Chapter IV or that any narcotic drug or psycho¬tropic substance, in respect of which any offence punishable under Chapter IV, has been committed or any document or other article which may furnish evidence of the commission of such offence, has been kept or concealed in any building, conveyance or place. Sub-Sec. (2) of Sec. 41 further enables the State Government to empower any officer of the gazetted rank of the Revenue, Drugs Control, Excise, Police or any other depart¬ment by a general or special order to perform the said function. Sub-Sec. (2) of Sec. 41 further enables the State Government to empower any officer of the gazetted rank of the Revenue, Drugs Control, Excise, Police or any other depart¬ment by a general or special order to perform the said function. The said sub-Sec. also confers power on such empowered gazet¬ted officer to authorise any officer, subordinate to him but superior in rank to a peon, sepoy or a constable to perform the said function, for which the general or special order has empow¬ered him. Sec. 42 is the power of entry, search, seizure and arrest without any warrant or authorisation. Sec. 50, which is supposed to be the minimum safeguard afforded to an accused, provides that when a search is about to be made of a person under Sec. 41 or Sec. 42 or Sec. 43, and if the person so requires, then the said person of whom search is about to be made has to be taken to the nearest gazetted officer of any of the departments mentioned in Sec. 42 or to the nearest Magistrate. The argument of the learned counsel for the respondent is based upon the expression used in Sec. 50 to the effect “any person duly authorised under Sec. 42” and, therefore, a distinction is sought to be made in case of a search between an empowered officer and a search made by an authorised officer. But the said argument is devoid of any substance, since Sec. 42 itself also speaks of search to be made by an officer, as is empowered by a general or special order by the Central Government or as is empowered by a general or special order by the State Government. A combined reading of the provisions of Sec. 42 and Sec. 50 would make it crystal clear that whenever a search of a person is about to be made on the basis of personal knowledge or informa¬tion received in that behalf, then if the person to be searched requires to be taken to a gazetted officer or the nearest Magis¬trate, the same must be complied with and failure to comply with the same would constitute an infraction of the requirements of the provision of Sec. 50, which would ultimately vitiate the conviction. For the purpose of complying with the provisions of Sec. 50, no differentiation can be made on a plain reading of the language used in Sec. 50, depending upon the officer who is going to search the person concerned. In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, by which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, the person to be searched has been afforded the minimum right to be searched before another gazetted officer or the Magistrate and that right cannot be taken away merely because the officer going to search happens to be a gazetted officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the legisla¬ture has enacted the safeguard contained in Sec. 50 to obviate any doubt of the illicit articles under the Act and this provi¬sion was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable. It is in this connection, it would be appropriate to extract the observations made by a three-Judge Bench of this Court in the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat : (1995) 3 SCC 610 : 1995 SCC (Cri.) 564 : “6. It is to be noted that under the NDPS Act, punishment for contravention of its provisions can extend to rigorous im¬prisonment for a term which shall not be less than 10 years but which may extend to 20 years and also to fine which shall not be less than rupees one lakh but which may extend to rupees two lakhs, and the Court is empowered to impose a fine exceeding rupees two lakhs for reasons to be recorded in its judgment. Sec. 54 of the NDPS Act shifts the onus o proving his inno¬cence upon the accused; it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is proved, that an accused has committed an offence under it in respect of the articles covered by it ‘for the possession of which he fails to account satisfactorily’. Having regard to the grave conse¬quences that may entail the possession of illicit articles under the NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable, the legislature has enacted the safeguard contained in Sec. 50. To obviate any doubt so as to the possession by the accused of illicit articles under the NDPS Act, the accused is authorised to require the search for such possession to be conducted in the presence of a gazetted officer or a Magistrate. We endorse the finding in State of Punjab v. Balbir Singh : (1994) 3 SCC 299 : 1994 SCC (Cri.) 634, that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a gazetted officer or a Magistrate.” In the aforesaid judgment, not only the decision of this Court in Balbir Singh case (supra) to the effect that the provisions of Sec. 50 are mandatory, has been endorsed but also, it further indicates that it obliges the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a gazetted officer or a Magistrate. In the case in hand, the evidence of PW 1 indicates that even though the obligation of the officer had not been discharged by way of informing the accused of his right to demand that the search be conducted in the presence of a gazetted officer or a Magistrate but the accused himself wanted to be searched before another gazetted officer or a Magistrate but that was not acceded to. It is not necessary to notice several decisions of this Court, holding the provisions of Sec. 50 to be mandatory and we would notice the recent Constitution Bench decision on the point. It is not necessary to notice several decisions of this Court, holding the provisions of Sec. 50 to be mandatory and we would notice the recent Constitution Bench decision on the point. In the case of State of Punjab v. Baldev Singh : (1999) 6 SCC 172 : 1999 SCC (Cri.) 1080, this question was considered and answered by the Constitution Bench by holding that it is an obligation of the empowered officer and his duty before conduct¬ing the search of the person of a suspect, on the basis of prior information, to inform the suspect that he has the right to require his search being conducted in the presence of a gazetted officer or a Magistrate and the failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Sec. 50. It was further held that if the person concerned requires, on being so informed by the empowered officer or other¬wise, that his search be conducted in the presence of a gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence of the accused based solely on recovery made during that search bad. This Court further held that bearing in mind the purpose for which the safeguard has been made, it is held that the provisions of Sec. 50 of the Act implicitly make it imper¬ative and obligatory and cast a duty on the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Sec. 50, by intimating to the person concerned about the existence of his right, that if he so requires, he shall be searched before a gazetted officer or a Magistrate and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit article suspect and vitiate the conviction and sen¬tence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Sec. 50 of the Act. In para 57 of the judgment in Baldev Singh case (supra) the Constitution Bench held as follows : “(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-sec. (1) of Sec. 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search 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 his person, during a search conducted in violation of the provisions of Sec. 50 of the Act.” In view of the aforesaid conclusions of the Constitution Bench, the submission of Mr. Yashank Adhyaru, appearing for the respondent-State, that the requirement of compliance with Sec. 50 will not arise, if a search is going to be made by an empow¬ered officer, who happens to be a gazetted officer, is devoid of any substance inasmuch as this Court in no uncertain terms has held that when an empowered officer or a duly authorized officer, acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under Sub-sec. (1) of Sec. 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. (1) of Sec. 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. In view of the aforesaid position of law and in view of the evidence of PW 1, as indicated in the earlier part of this judg¬ment, the accused himself having wanted to be searched before a gazetted officer or a Magistrate and the same having been denied, there cannot be any doubt that failure on the part of the prose¬cution in complying with the provisions of Sec. 50 renders the recovery of the illicit article suspect and vitiates the convic¬tion and sentence of the accused, since the conviction in the case in hand is based solely on the alleged possession of charas, which was recovered from his person during a search conducted in violation of the provisions of Sec. 50 of the Act. In the aforesaid circumstances, the conviction and sentence is set aside and the accused be set at liberty forthwith, unless required in any other case. Fine amount, if has been paid, may be refunded to the accused. 5. Criminal appeal is accordingly allowed. Appeal allowed.