Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 241 (PAT)

Rajeshwar Mahto v. State Of Bihar

2003-02-27

P.N.YADAV, S.N.JHA

body2003
Judgment S.N.Jha and P.N.Yadav JJ. 1. This appeal by the sole appellant arises from the judgment and order of the 2nd Additional Sessions Judge, East Champaran at Motihari in case no. 10 of 1998/49 of 1993 convicting him under section 23 of the Narcotic Drugs and Psychotropic Sub-stances Act (hereinafter called the Act) and awarding sentence of rigorous imprisonment for 14 years and fine of Rs. 1,50,000/- and in default, further rigorous imprisonment for two and a half years. 2. It may be stated at the outset that along with the appellant herein, one Ramashray Sah was also convicted by the same judgment. Ramashray Sah preferred Criminal Appeal No. 169 of 2000 which was allowed by a Division Bench of this Court on 26.2.2002. The learned Judges held that as it was a case of body check, the requirement of Section 50 of the Act should have been followed, and on account of non-compliance thereof, the conviction was not in accordance with law which was accordingly set aside. 3. Section 50 of the Act provides, "When any Officer duly authorised by 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 him without unnecessary delay to the nearest Gazetted Officer or any of the departments mentioned in section 42 or to the nearest Magistrate." 4. Mrs. Nirmala Kumari, appearing amicus curiae for the appellant submitted that as the case of the appellant stands on par with that of Ramashray Sah, his conviction too is fit to be set aside. Sri Rakesh Kumar, learned counsel for the Customs, submitted that it is not a case of noncompliance of Section 50 of the Act. He submitted with reference to the evidence of P.W. 1 that the person of the appellant was searched in presence of a gazetted officer namely, Assistant Commissioner of Customs and, therefore, the question of informing the accused appellant about his rights envisaged in Section 50 of the Act did not arise. Counsel urged that it was only where the search of a person is not made in presence of a gazetted officer or a magistrate that the suspect has to be given an opportunity and informed about his right to get his person searched in presence of the gazetted officer or a magistrate. 5. Counsel urged that it was only where the search of a person is not made in presence of a gazetted officer or a magistrate that the suspect has to be given an opportunity and informed about his right to get his person searched in presence of the gazetted officer or a magistrate. 5. More or less similar contention was raised before the Division Bench which decided the appeal of Ramashray Sah. The learned Judges noticed the decision of the Apex Court in Ahmad V/s. State of Gujarat, 2000 (4) PLJR 124 (S.C.) and held that the rights of the suspect under section 50 of the Act cannot be taken away merely because the Officer making search is a Gazetted Officer. It is imperative that he should be told about his rights under that section. Learned counsel for the Department tried to distinguish the decision but conceded that as Ramashray Sah was convicted by the same judgment and the case of the appellant herein stands on par, it is not possible for a coordinate Bench to take a different view. 6. It may, however, be stated in defence of the appellants case a Constitution Bench of the Apex Court in the case of State of Punjab V/s. Baldev Singh, (1999) 6 SCC 172 has conclusively held that "It is imperative and obligatory for the Investigating Officer to inform the suspect orally or in writing about his right to be searched in presence of the Gazetted Officer or a Magistrate and where the suspect desires that search be made only in presence of a Gazetted Officer or a Magistrate, to do so." The question of his exercising the right obviously arises only when he is told about his rights, that is to say, an opportunity is given to him as to whether he wants to be searched in presence of a gazetted officer or a magistrate. The fact that the search was conducted by a Gazetted Officer, cannot be treated as compliance of the requirements of section 50 of the Act. We, therefore, do not think that the decision in the case of co-convict Ramashray Sah was erroneous so as to warrant reconsideration by a larger Bench. 7 In the result, the appeal is allowed. The conviction and sentence awarded to the appellant are set aside and he is acquitted of the charge. The appellant is in jail. We, therefore, do not think that the decision in the case of co-convict Ramashray Sah was erroneous so as to warrant reconsideration by a larger Bench. 7 In the result, the appeal is allowed. The conviction and sentence awarded to the appellant are set aside and he is acquitted of the charge. The appellant is in jail. He is directed to be set free forthwith if not wanted in any other case. 8. Let the first and the last pages of this judgment be handed over to Mrs. Nirmala Kumari to facilitate payment of her fee by the Patna High Court Legal Aid Committee.