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Himachal Pradesh High Court · body

2013 DIGILAW 458 (HP)

Surinder Kumar v. State of H. P.

2013-05-23

Dev Darshan Sud

body2013
JUDGMENT Dev Darshan Sud, J. The appellant challenges his conviction under Section 18 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the ‘Act’). He has been sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 25,000/-. 2. A number of points have been urged before me by learned counsel appearing for the appellant. However, without adverting to the grounds in detail, what I find is that the provisions of Section 50 of the ‘Act’ have not been complied with. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609 , the Court holds: 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. Subsection (3) lays down that when the person to be searched is brought 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 authorized 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 authorized officer to do so….. 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 State of Punjab Vs. Baldev Singh’s, (1999) 6 SCC 172 ). 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 State of Punjab Vs. Baldev Singh’s, (1999) 6 SCC 172 ). We are concerned with the following conclusions:- (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. (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. 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……..” 29. 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 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 in so far 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 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. 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 provision……….. 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 vs State of Goa, (2000) 1 SCC 707 and Prabha Shankar Dubey vs. State of M.P. (2004) 2 SCC 56 is neither borne out from the language of sub-section (1) of Section 50 nor it is in c onsonance with the dictum laid down in Baldev Singh’s case (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.” (P.617-622) 3. From the record I do not find that these mandatory conditions have been complied with as there is no evidence on the record to establish the compliance of Section 50 of the ‘NDPS Act’. Ext.PD nowhere mentions that the accused has a legal right and option to be searched either by the police officials, gazetted officers or a Magistrate. 4. The second contention raised by the learned counsel for the petitioner is that the report of the Chemical Analyst does not in any manner comply with the mandatory provisions of the ‘Act’. Report Ext.PW9/D is not in conclusive of the fact as to whether the contraband is opium or not. In State of H.P. Vs. Des Raj, 2013 (1) Shim. L.C. 261, a Division Bench of this Court had occasion to deal with the matter. Adverting to the facts on record, the Court holds: 25. The present case relates to opium falling within Section 18 of the Act. The accused was alleged to have been found in possession of 50 grams of opium. Des Raj, 2013 (1) Shim. L.C. 261, a Division Bench of this Court had occasion to deal with the matter. Adverting to the facts on record, the Court holds: 25. The present case relates to opium falling within Section 18 of the Act. The accused was alleged to have been found in possession of 50 grams of opium. The report of the Chemical Analyst is as follows:- “Test for meconic acid: Positive Test for morphine: Positive General observation of Chemicals: I am of the opinion that the exhibit contains the contents of opium.” 26. Keeping in view the above discussion, it is apparent that this report is not sufficient to convict the accused. Only things found positive are meconic acid and morphine. Even the percentage of morphine has not been given. It has also not been stated that the contraband was the product of the papaver somniferum plant. On this ground alone the accused has to be acquitted and therefore, the appeal of the state is dismissed. Bail bonds are discharged. We place on record our appreciation for the valuable assistance rendered by Mr. Vivek Thakur, learned Additional Advocate General and Mr. Anup Chitkara, learned Amicus Curiae. (P.269-270) In the present case also the report Ext.PW9/D is identical on all aspects. In these circumstances, this appeal is allowed. Judgment of learned Addl. Sessions Judge is quashed and set aside. The fine, if paid by the appellant shall be refunded to him. Bail bonds furnished by the appellant shall stand discharged.