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2004 DIGILAW 1035 (RAJ)

Prabhu Ram v. The State of Rajasthan

2004-07-22

SHIV KUMAR SHARMA

body2004
JUDGMENT 1. - This appeal owes its origin in the judgment dated May 12, 2000 of the learned Special Judge, NDPS Cases, Sriganganagar whereby the appellants Prabhu Ram and Lalu were convicted and sentenced under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act, 1985) each to suffer rigorous imprisonment for ten years and to pay a fine of Rs.1,00,000/- each, in default, to further suffer rigorous imprisonment of one year. 2. Briefly stated the prosecution case is that on December 31, 1996 Vipin Sharma, SHO Police Station Chunavadh, District Sriganganagar on receiving the secret information proceeded to the spot and apprehended the appellants as they might have some objectionable article with them. On being searched, opium milk weighing 5.3 Kgs. and 2.6 Kgs. carrying in two bags respectively by Prabhu Ram and Lalu got recovered. After drawing necessary memos, the appellants were arrested and on completion of investigation, charge-sheet was filed. In due course, the case came up for trial before the learned Special Judge, NDPS Cases, Sriganganagar Charge under Section 8/18 of the NDPS Act was framed against the appellants who denied the charge and claimed trial. Prosecution in support of its case, examined as many as 10 witnesses and got exhibited 29 documents. In explanation under Section 313 Cr.P.C., appellants claimed innocence. No witness in defence was however examined. The learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. 3. It is contended by the learned counsel for the appellants that on being given written notice under Section 50 of the NDPS Act requiring the appellants to exercise option to be searched either before the Magistrate or the Gazetted Officer, third option was also given by Vipin Sharma, SHO to effect the search by himself. According to the learned counsel, third option was uncalled for in view of the ratio indicated in Munna Lal v. State of Rajasthan, 2004(2) R.Cr.D. 228 (Raj.) where in this Court indicated as under: "Apart from giving the option of search in the presence of Gazetted Officer or a Magistrate, the notice Ex.P/6 contains a third option to the effect that the accused could be searched by the SHO Amar Singh, if he so liked. Needless to say that the third option was uncalled for and was capable of misleading the accused. Needless to say that the third option was uncalled for and was capable of misleading the accused. He has been informed that it was his legal right to exercise any of the three options. Under Section 50 of the NDPS Act only the option in respect of a Gazetted Officer or a Magistrate has to be offered. In the instant case PW1 Amar Singh exceeded the mandate and made the appellant to believe that he was to exercise one of the three options. Consequently, I find that the compliance of Section 50 was improper and the appellant is entitled to acquittal on that count." 4. Per contra, learned Public Prosecutor supported the impugned judgment and contended that SHO was justified in giving third option in view of the requirement of sub-section (1) of Section 50 of the NDPS Act. According to the learned Public Prosecutor, words "if such person so requires" empower the SHO to give third option and thus no illegality was committed by the SHO in conducting the search by himself. 5. I have pondered over the rival submissions and scanned the material on record. 6. At this juncture, I deem it appropriate to refer the provisions of Section 50 of the NDPS Act which reads as under: "S.50. Condition under which search of person 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. so (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 sewer, forthwith discharge the persons but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for sewer, forthwith discharge the persons but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer 15 shall record the reasons for such belief which necessitated such search and within seventy- two hours send a copy thereof to his immediate official superior." 7. Section 50 has been introduced with the obvious intent to avoid any harm to innocent persons and to avoid raising of allegations of planting of fabrication by prosecuting authorities. It mandates that if a person to be searched so requires, the officer who is about to search him under the provisions of Section 41 and 42 shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. 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. Requirement of Section 50 may be summarised thus: (i) It is mandatory for the officer conducting search and seizure to inform the suspect his right to be searched in presence of the Magistrate or Gazetted Officer. (ii) It is mandatory for the officer conducting search and seizure to follow the mandate of sub-section (3) and to inform the suspect that Gazetted Officer or the Magistrate, if sees no reasonable ground for search, shall discharge the person. 8. Sub-section (5) and (6) have been added by Amendment Act 9 of 2001 which came into force with effect from October 2, 2001. 8. Sub-section (5) and (6) have been added by Amendment Act 9 of 2001 which came into force with effect from October 2, 2001. Sub-section (5) provides that in an emergent situation the search and seizure may be effected by the authorised officer without taking suspect to the nearest Gazetted Officer or Magistrate when there is possibility that suspect is likely to part with the possession of Narcotic drug or psychotropic substance or controlled substance or any article or document. However, adequate statutory safeguards have been provided under Section (6). 9. Adverting to the facts of the case on hand, I find that written notices (Exhibit P-5 and P-6) were given to the appellants under Section as 50 of the NDPS Act requiring the appellants to be searched either before the Magistrate or Gazetted Officer or by the SHO himself. The appellants wrote on the notice that their search be taken by the Vipin Sharma SHO concerned. It is evident from the perusal of the notice Exhibit P-5 and P-6 that appellants were not informed that the Magistrate or the Gazetted 50 Officer, if sees no reasonable ground for search, shall discharge the appellant. 10. Prior to incorporation of sub-section (5) in Section 50, the authorised officer himself could not search the suspect but with effect from October 2. 2001 the authorised officer in an emergent situation may effect the search and seizure subject to the checks provided in sub-section (6). In my considered opinion, Vipin Sharma, S.H.O. was not authorised to give option to search the appellant himself. The third option was uncalled for. I find myself unable to agree with the submissions advanced by the learned Public Prosecutor. The interpretation suggested by the learned Public Prosecutor, in my view, is not correct. In my view, once the opinion is given to be searched by the Gazetted Officer or the Magistrate, it implies that suspect required to be searched by the Gazetted Officer or the Magistrate otherwise necessity of giving option does not arise and in such situation it was not necessary to give written notice under Section 50 of the NDPS Act. Once notice under Section 50 of the NDPS Act is given, it is the duty of the officer concerned to comply with the mandate of the said Section. Provisions contained in Section 50 cannot be stretched and interpreted by the SHO which suits him. Once notice under Section 50 of the NDPS Act is given, it is the duty of the officer concerned to comply with the mandate of the said Section. Provisions contained in Section 50 cannot be stretched and interpreted by the SHO which suits him. In my opinion, full compliance of Section 50 is necessary. 11. Since the search was conducted on December 31, 1996, the amended provisions are not applicable to the facts of the instant case. By effecting the search and seizure himself Vipin Sharma, SHO has flouted the mandate of Section 50 of the NDPS Act. Their Lordships of the Supreme Court in State of Punjab v. Balbir Singh, (1994) 3 SCC 299 indicate that Section 50 of the NDPS Act confers a valuable right on the person to be searched in the presence of Gazetted Officer or Magistrate if he so requires, since such a search would impart much more authentic and creditworthiness to the proceedings while equally providing an important safeguard to the accused and that, therefore, the safeguard conferred under Section 50 is to be taken as an important requirement and as a legislative imperative and non-compliance would vitiate the trial. 12. Section 50 applies to the personal search. Anything carried by the suspect in his hands, shoulder or head would also be on his person. A purse or packet if is on his person would not become luggage in his hands. A sling bag handing on the body of the suspect is of on his person would not become luggage if it is carried in the hand. Something on the person of the suspect cannot be taken search of unless provisions of Section 50 are observed. If a bag is carried by the suspect then it is on the person of the suspect and not otherwise. Since the appellants were alleged to carry the bag and packet on their shoulder, it was essential for the SHO to scrupulously follow the legislative safeguards contained in Section 50. 13. If a bag is carried by the suspect then it is on the person of the suspect and not otherwise. Since the appellants were alleged to carry the bag and packet on their shoulder, it was essential for the SHO to scrupulously follow the legislative safeguards contained in Section 50. 13. Three Judge Bench of the Hon'ble Supreme Court in Namdi Francis Nwazor v. Union of India and another, 1998 SCC (Crl) 1516 indicated in para 3, thus "On a plain reading of sub-section (1) of Section 50, it is obvious that it applies to cases of search of any person and not search of any article in the sense that the article is at a distant place from where the offender is actually searched. This position becomes clear when we refer to sub-section (4) of Section 50 which in terms says that no female shall be searched by anyone excepting a female. This would, in effect, mean that when the person of the accused is being searched, the law requires that if that person happens to be a female, the search shall be carried out only by a female. Such a restriction would not be necessary for searching the goods of a female which are lying at a distant place at the time of search. It is another matter that the said article is brought from the place where it is lying to the place where the search takes place but that cannot alter the position in law that the said article was not being carried by the accused on his or her person when apprehended. We must hasten to clarify that if that person is carrying a handbag or the like and the incriminating article is found therefrom, it would still be a search of the person of the accused requiring compliance with Section 50 of the Act." (Emphasis supplied) 14. In this view of the matter, conviction of the appellants under Section 18 of the NDPS Act cannot be sustained. 15. For these reasons, I allow the appeal and set aside the judgment dated May 12, 2000 passed by the learned Special Judge, NDPS Cases, Sriganganagar I acquit the appellants Prabhu Ram and Lalu of the charge under Section 8/18 of the NDPS Act. 15. For these reasons, I allow the appeal and set aside the judgment dated May 12, 2000 passed by the learned Special Judge, NDPS Cases, Sriganganagar I acquit the appellants Prabhu Ram and Lalu of the charge under Section 8/18 of the NDPS Act. The appellants who are in jail shall be set at liberty forthwith, if not required to be detained in any other case.Appeal Allowed-Conviction Set Aside . *******