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2011 DIGILAW 750 (MP)

Abid Khan v. State of M. P

2011-07-12

PRASHANT KUMAR MISHRA

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JUDGMENT Hon'ble Mr. Prashant Kumar Mishra, J. 1. In this appeal, the appellant has called in question the legality and validity of conviction imposed upon him under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and award of sentence of R.I. for one year and fine of Rs. 2,000/- 2. The facts of the case are that a search was made at about 5 p.m. on 10-12-1992 of the appellant by Sub Inspector N.S. Choubey, who is also first informant and in the said search, the appellant was found in possession of 1 kg of Ganja. FIR (Exh. P-6) was registered and after obtaining report of the chemical examination, charge-sheet was filed. 3. Jhaduram (P.W. 1) is the witness of seizure memo. After admitting his signature of the seizure memo, he has turned hostile. Similar is the fate of Kuleshar Das (P.W. 2), who is the witness of Exh. P-1 and Exh. P-3. 4. R.N. Patnaik (P.W. 3), the then SDOP, has stated that the accused was brought before him by the SHO Dhamdha along with seized Ganja and motorcycle which was verified by him. Balla ' Nand Kumar (P.W. 4), is the witness from whom the police had borrowed weighing instruments. N.S. Choubey (P.W. 5), SHO, who has conducted the raid, has supported the prosecution, however, in Paras 6 and 7 of his cross-examination, he admits that the accused was not served with any notice before seizure because the place where the accused was searched was a public place. 5. Learned Counsel for the appellant argued that the appellant was not informed about his right to be searched before a Gazetted Officer or before the Magistrate, as required under Section 50 of the Act and because of this non-compliance of mandatory provisions contained in the Act, the seizure of contraband has been vitiated and as a consequence, the appellant's conviction for offence under Section 20 (b) (i) of the Act is also vitiated and deserves to be set aside. 6. 6. On the other hand, learned Counsel, pointing out to the statement made by R.N. Patnaik (P.W. 3), SDOP, and the finding recorded by the Trial Court, argued that since seizure has been made from open place and the accused was immediately taken to a Gazetted Officer, there is substantial compliance of Section 50 of the Act and, therefore, no interference in the impugned judgment is called for. 7. This Court has heard learned Counsel for the parties at length and perused the records. 8. Since the appellant has raised the ground of non-compliance of the provisions contained in Section 50 of the Act, before examining other aspects of the matter, this Court shall deal with the question as to whether there was compliance of Section 50 or not and if there was no compliance, the effect thereof on the impugned judgment. 9. In the record of the trial, there is no document or even statement of Mr. Choubey who has effected the seizure that the has informed the accused about his right to be searched before a Gazetted Officer or before a Magistrate. On the contrary the said Shri Choubey admits in his cross-examination that since the NDPS Act was a new Legislation, he has not complied with the provisions contained in Sections 42 to 50 of the Act in the manner required in law. From the statement of R.N. Patnaik (P.W. 3), it appears that when the accused was brought before him, seizure of the contraband had already been effected. In the accused's statement recorded under Section 313 of the Cr.PC, no question has been put to the accused that when he was asked about his right to be searched before the Gazetted Officer or before the Magistrate, he admitted to be searched by Shri Choubey. Thus, from the entire evidence, this Court is of the opinion that there is non-compliance of the provisions contained in Section 50 of the Act. 10. Under Section 50 (1) of the Act, an officer who is to search the accused is required to inform the person about his right to be searched by a Gazetted Officer or by a Magistrate. If the person opts to be searched before Gazetted Officer or Magistrate, he shall immediately be taken to the said officer. Otherwise, search can be made by the concerned officer. If the person opts to be searched before Gazetted Officer or Magistrate, he shall immediately be taken to the said officer. Otherwise, search can be made by the concerned officer. This requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates the trial. 11. In the matter of State of Punjab Vs. Baklev Singh, AIR 1999 SC 2378 , the Hon'ble Supreme Court held that it is imperative for the empowered officer to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest officer or nearest Magistrate for making search, however, such information may not necessarily be in writing. This particular pronouncement and other part of the judgment in the matter of Baldev Singh (supra) was intercepted and applied in different manner by the Supreme Court in the matters of Joseph Fernandez Vs. State of Goa, (2001) 1 SCC 707 and Prahha Shankar Dubey Vs. State of M.P., (2004) 2 SCC 56 , and principle of substantial compliance of Section 50 was laid down in later decisions. Because of this divergent view, the Constitution Bench of the Supreme Court in the matter of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, 2011 Cri.LJ 680, considered the matter and has held in Para 22 of the judgment thus :- In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50 (1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz., to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a Gazetted Officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. We have no hesitation in holding that in so far as the obligation of the authorized officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provisions. As observed in Re : Presidential Poll, it is the duty of the Courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole". We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez, 2000 Cri.LJ 3485 (supra) and Prabha Shankar Dubey, AIR 2004 SC 486 (supra), is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case, 1999 Cri.LJ 3672 (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest Gazetted Officer or the Magistrate but in order to impart authenticity, transparency and credit-worthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 12. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 12. Since in the above judgment the Hon'ble Supreme Court has held that the provisions contained under sub-section (1) of Section 50 of the Act are mandatory and non-compliance thereof would render recovery of the illicit article suspect and vitiate conviction, this Court is of the opinion that since in the present case also, there is non-compliance of the mandatory provisions contained in sub-section (1) of Section 50 of the Act and seizure of contraband is the only basis for conviction, the present appeal deserves to be and is hereby allowed. 13. Conviction and sentence imposed upon the appellant under Section 20 (b) (i) of the Act are set aside and he is acquitted of the said charge. The appellant is on bail. His bail bonds are discharged and he need not surrender.