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2011 DIGILAW 83 (CHH)

SANT RAM ALIAS KORDU v. STATE OF M. P.

2011-03-03

PRITINKER DIWAKER

body2011
JUDGMENT 1. This appeal is directed against the judgment and order dated 7.3.1995 passed by the Additional Sessions Judge Bilaspur in Special Case No. 118/1993 convicting the accused/appellant under Section 22 of the Narcotic Drug and Psychotropic Substance Act (for short the "Act") and sentencing him to undergo rigorous imprisonment for 10 years and pay fine of Rs. 1,00,000, in default of payment of fine to further undergo rigorous imprisonment for two and a half years. 2. Case of the prosecution in brief is that on 22.9.1993 one Arun Mishra Station House Officer (PW-3) received a secrete information that the accused/appellant was in possession of brown sugar and after making entry in the Rojnamcha Sanha Ex. P-4 he informed his superior officer namely J.S. Parihar about the same on phone and then proceeded towards the Railway Station. It is alleged that the accused/appellant was found near the salary office of the Railway Station and informed that as he was in possession of the illicit brown sugar, he was required to be searched. The accused/appellant was also informed by the Station House Officer that he could be searched either by him or by the Gazetted Officer or the Magistrate, on which he gave consent for being searched by this witness himself. On search, the accused/appellant was found in possession of brown sugar weighing one gram which was seized from his pocket vide seizure memo Ex. P-I. After completing all the procedural formalities FIR Ex. P-7 was registered on the same day for an offence under Section 22 of the Act. After investigation, challan was filed by the police on 31.12.1993. 3. So as to hold the accused/appellant guilty, prosecution has examined 03 witnesses in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record including the judgment impugned. 6. Counsel for the appellant submits that in the case in hand the mandatory provision of Section 50 of the Act have not been complied with in its true spirit and this apart both the seizure witnesses namely Nasir Ali (PW-l) and Mujfar Khan (PW-2) have not supported the case of the prosecution and have been declared hostile. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the trial Court being in consonance with the provisions of law are well founded and call for' '00 interference by this Court. He submits that seizure of the contraband has been made by Arun Mishra (PW-3) and even if the seizure witnesses have not supported the case of the prosecution, the judgment impugned cannot be said to suffer from any illegality. 8. Nasir Ali (PW -1) - the witness to the seizure of the contraband has categorically stated that no seizure whatsoever was made in his presence and that his signature was obtained by the Tarbahar police saying that recovery of some brown sugar was being made in the police station. Almost same thing has been stated by the other seizure witness namely Mujfar Khan (PW-2). Station House Officer - Arun Mishra (PW-3) who had done investigation in the case has duly supported the case of the prosecution stating that after receiving a secrete information regarding the appellant carrying brown sugar, he entered the same in the Rojnamcha Sanha and then forwarded it to his superior officer on telephone. Thereafter acting upon the information received by him he proceeded to the Railway Station where near the salary office he met the accused/appellant and informed him that as he was carrying brown sugar, his search was required to be made. The accused/appellant was also informed by this witness that he could be searched either by him or by the Gazetted Officer or the Magistrate, on which he gave consent for being searched by this witness himself. On search, the accused/appellant was found in possession of brown sugar weighing one gram wrapped in polythene which was seized from his pocket vide seizure memo Ex. P-l. 9. On search, the accused/appellant was found in possession of brown sugar weighing one gram wrapped in polythene which was seized from his pocket vide seizure memo Ex. P-l. 9. According to the latest decision of the Supreme Court in the matter of Vijaysinh Chandubha Jadeja Vs. State of Gujrat compliance of provisions of Section 50 of the Act in its true spirit is mandatory. Relevant portion of the said decision reads as under: 18. Section 50 of the NDPS Act prescribes the conditions under which personal search of a person is required to be conducted. Being the pivotal provision, the section, (as amended by Act 9 of2001, inserting sub-sections (5) and (6) with effect from 2-10-2001) is extracted in full. It reads as under: "50. Conditions under which search of persons 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. (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 suc;h 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 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 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." 19. (6) After a search is conducted under sub-section (5), the officer 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." 19. Sub-section (1) of Section 50 provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section (2), it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the gazetted officer or the Magistrate, as the case may be. Sub-section (3) lays down that when the person to be searched is brougnt before such gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct the search to be made. 20. The mandate of Section 50 is precise and clear viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so. 21. At this juncture, we must state that the issue before us in terms of the referral order is not about the applicability of Section 50 of the NDPS Act per se but is confined to the scope and width of the expression "if the person to be searched so requires" as figuring in sub-section (1) of the said section. Therefore, we deem it unnecessary to evaluate the submissions made by the learned counsel regarding the applicability of the rigours of Section 50 of the NDPS Act when a search of the suspect is conducted by an officer empowered under Section 41 of the said Act. 22. Therefore, we deem it unnecessary to evaluate the submissions made by the learned counsel regarding the applicability of the rigours of Section 50 of the NDPS Act when a search of the suspect is conducted by an officer empowered under Section 41 of the said Act. 22. We may, however, add that while considering the question of compliance with Section 50 of the NDPS Act, the Constitution Bench in Baldev Singh4 considered the provisions of Section 41 as well. It observed as under: (SCCp. 189, para 8) "8. Section 41 of the NDPS Act provides that 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 and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-section (2) the power has also been vested in gazetted officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force, empowered in that behalf by a general or special order of the State Government to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or to search any person or conveyance or vessel or building, etc. with a view to seize any contraband or document or other article which may furnish evidence of the commission of such an offence, concealed in such building or conveyance or vessel or place." (emphasis in original) 23. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution Bench in Baldev Singh case. We are concerned with the following conclusions: (SCC pp. 208-10, para 57) "(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-section (1) of Section 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. 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 Section 50 of the Act. *** (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search." (emphasis in original) 24. Although the Constitution Bench in Baldev Singh case4 did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, 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 reccovery 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 that person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. 25. As noted above, sub-sections (5) and (6) were inserted in Section 50 by Act 9 of2001. It is pertinent to note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub sections viz. 25. As noted above, sub-sections (5) and (6) were inserted in Section 50 by Act 9 of2001. It is pertinent to note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub sections viz. when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, etc., or article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases a safeguard against any arbitrary use of power has been provided under sub-section (6). Under the said sub section, the empowered officer is obliged to send a copy of the reasons, so recorded, to his immediate official superior within seventy-two/hours of the search. In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate. 26. The object and the effect of insertion of sub-sections (5) and (6) were considered by a Constitution Bench of this Court, of which one of us (D.K. Jain J.) was a member, in Kamail Singh v. State of Haryanall. Although in the said decision the Court did observe that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev Singh case is diluted but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away completely. The Court observed: (Kamail Singh casel3 SCC p. 553, para 31) “31. ... Through this amendment the strict procedural requirement as mandated by Baldev Singh case4 was avoided as relaxation and fixing of the reasonable time to send the record to the superior official as well as exercise of Section 100 CrPC was included by the legislature. The Court observed: (Kamail Singh casel3 SCC p. 553, para 31) “31. ... Through this amendment the strict procedural requirement as mandated by Baldev Singh case4 was avoided as relaxation and fixing of the reasonable time to send the record to the superior official as well as exercise of Section 100 CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance with Section 50 by Baldev Singh case4 was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baidev Singh case4 is diluted~" 27. It can, thus, be seen that apart from the fact that in Kamail Singh13, the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search, seizure and arrest without warrant or authorisation, the said decision does not depart from the dictum laid down in Baldev Singh case4 insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in sub-section (1) of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub-section (6) of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub-section (5), to his immediate superior officer, "Yithin the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial. 28. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial compliance" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. 28. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial compliance" with the requirement embodied in Section 50 of the NDPS Act has been held to be sufficient. In Prabha Shankar Dubey a two Judge Bench of this Court culled out the ratio of Baldev Singh case on the issue before us, as follows: (Prabha Shankar Dubey case, SCC p. 64, para 11) "11. ... What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word 'right' at relevant places in the decision of Baldev Singh ease4 seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the' suspect' at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it." However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez I the Court chose to follow the views echoed in the latter case, wherein it was held that the searching officer's information to the suspect to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression "substantial compliance" in the following words: (Prabha Shankar Dubey ease2, SCC p. 64, para 12) "12. The use of the expression 'substantial compliance' was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh ease2. The use of the expression 'substantial compliance' was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh ease2. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations." It is manifest from the afore-extracted paragraph that Joseph Fernandez I does not notice the ratio of Baldev Singh4 and in Prabha Shankar Dubey, Joseph Fernandez I is followed ignoring the dictum laid down in Baldev Singh ease. 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the 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 minimise 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 insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires 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 mayor may not choose to exercise the right provided to him under the said provision. 30. As observed in Presidential Poll, In re14: (SCC p. 49, para 13) "13. ... 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.' "31. 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.' "31. 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 and Prabha Shankar Dube. is neither borne out from the language of subsection (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh case4. 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. 32. 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 creditworthiness 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." In the present case notice Ex. P-6 which was given to the accused/ appellant reads as under: ^^lgefr i= /kkjk 43 ukj- ,DV lUrjke mQZ dUVw S/o. /kje iVsy mez 21 o”kZ lk- ctjaxcyh eafnj ds ikl] exjikjk Fkkuk] flfoy ykbu] fcykliqjA eq>s fo’okl gS fd vkids ikl voS/k czkmu lqxj gS ftldh eSa tIrh djuk pkgrk gw¡A vki tIrh djkus ds fy;s rS;kj gSa ;k jktif=r vf/kdkjh ;k eftLVªsV ds le{k tIr djkosaxsA gLrk- iq- vf/kdkjh eSa tIr djkus dks rS;kj gw¡A eftLVªsV ds ikl pyus dks rS;kj gw¡A jktif=r vf/kdkjh ds ikl pyus dks rS;kj gw¡A A bare reading of the said notice makes it clear that the same was not given with respect to the search but it appears to be in respect of seizure. If so, it is clear that in this case before effecting seizure no notice with respect to search has been given to the accused/appellant and thereby provisions of Section 50 of the Act have not been complied with. Moreover, an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband against the accused though any other material recovered during that search may be relied upon by the prosecution in other proceedings against an accused notwithstanding the fact that recovery of that material was made during an illegal search. This apart, even the seizure I witnesses examined by the prosecution have not supported the case of the prosecution and turned hostile. 10. Thus having gone through the material available on record this Court is of the considered opinion that while recording conviction by the judgment impugned the court below has fallen in a grave legal error by ignoring the fact that no notice with respect to the search in terms of Section 50 of the Act, has been given to the accused/appellant before effecting recovery from him. 11. Consequently, the appeal is allowed. Judgment impugned is hereby set aside. Accused/appellant is acquitted of the charge levelled against him. As he is already on bail, his bail bonds stand discharged. Appeal Allowed.