Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 929 (BOM)

Thulile Goodness Dhalmini v. Union of India

2014-04-08

V.K.TAHILRAMANI, V.L.ACHLIYA

body2014
JUDGMENT : SMT. V. K. TAHILRAMANI, J.:- The appellant - original accused has preferred this Appeal against the Judgment and Order dated 31.10.2012 passed by Special Judge under NDPS Act in NDPS Special Case No. 108 of 2010. By the said Judgment and Order, the learned Special Judge convicted the appellant under Section 21 (c) r/w 8(c) and Section 28 r/w 23(c) r/w 8(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act", for short). On both counts, she was sentenced to R. I. for 15 years and tine of Rs. 1,00,000/- in default SI for six months. 2. The prosecution case briefly stated, is as under: (a) PW 1 Shri. Bhosale, the Intelligence Officer in Air Intelligence Unit (AIU) was on duty at Sahar International Airport, Mumbai from 8.00 pm on 29.12.2009 to 8.00 am on 30.12.2009. He was on duty in the departure module and his job was to keep surveillance on passengers leaving Mumbai by any Airlines. At about 3.00 a.m., he was standing in front of Ethiopian Airlines counter. Flight No. ET-611 was scheduled at that time. It was supposed to leave at about 5.00 a.m. There was a queue at the counter. The appellant was in the said queue. She had one purse with her as well as two suitcases. On observing her body language and the fact that she was sweating, PW 1 Shri. Bhosale made inquiry with her about her destination and asked for documents. He asked her whether she was carrying any narcotic drug. She replied in the negative. However, Shri. Bhosale was not satisfied. I.O. Shri. Bhosale then called the dog handler Shri. Mahadeshwar. (b) Shri. Mahadeshwar came after 10-15 minutes along with the dog. I.O. Shri. Bhosale then expressed his doubt to Shri. Mahadeshwar and said that the dog should sniff. The dog sniffed and started barking which according to I.O. Shri. Bhosale was a positive indication that the appellant was carrying drugs. He then informed his batch in-charge PW 3 Shri. Adate, Superintendent AIU on telephone. (c) At about 4.45 am, Shri. Adate was informed by I.O. Shri. Bhosale that he along with the dog handler Shri. Mahadeshwar had intercepted the appellant. Shri. Bhosale informed Shri Adate that he suspected that the appellant was carrying some narcotic drug in her baggage. Hence, Shri. Adate immediately rushed to the departure customs counter. (c) At about 4.45 am, Shri. Adate was informed by I.O. Shri. Bhosale that he along with the dog handler Shri. Mahadeshwar had intercepted the appellant. Shri. Bhosale informed Shri Adate that he suspected that the appellant was carrying some narcotic drug in her baggage. Hence, Shri. Adate immediately rushed to the departure customs counter. Shri. Adate saw the appellant and I.O. Shri. Bhosale along with Shri. Mahadeshwar with sniffer dog. He found that the lady was in possession of two pieces of baggage and one hand-purse. I.O. Shri. Bhosale told Shri. Adate that her Grey coloured suitcase carried as hand bag was sniffed by the sniffer dog and gave positive indication of some narcotic substance. He then directed I.O. Shri. Bhosale to go back to his duty. Shri. Adate then informed one of his officers PW 2 Shri. Phani Kumar to arrange for two panchas and come to the check in counter area of Ethiopian Airlines. Then, they took the appellant along with her two baggages and the Maroon colour purse to the Ethiopian Airlines to inform them about the appellant being off loaded and to show the baggage. One of the baggage with her was already checked in and it was retrieved by I.O. Shri. Bhosale and brought to the customs departure counter. (d) PW 2 Shri. Phani Kumar came with the panchas and other officers who were on duty. The appellant was again asked in presence of panchas whether she was carrying any contraband article or narcotic drug on her person or in the baggage. She replied in the negative. The sniffer dog was then allowed to sniff the baggage. The dog again gave the positive signal after sniffing the Grey Coloured suitcase. The appellant along with baggage and panchas was escorted to AIU office. PW 2 Shri. Phani Kumar told the appellant that she can opt for the search in presence of the Magistrate or Gazetted Officer. The appellant opted for personal search in presence of Gazerted Officer Smt. Aruna Kapare who was present in the office. The appellant was escorted to a vacant room by officer Smt. Hemangi. After sometime, the appellant was again brought outside the room. It was reported that nothing incriminating was found in her personal search. Thereafter, the appellant was asked to open the Grey colour handbag. She opened the suitcase. The appellant was escorted to a vacant room by officer Smt. Hemangi. After sometime, the appellant was again brought outside the room. It was reported that nothing incriminating was found in her personal search. Thereafter, the appellant was asked to open the Grey colour handbag. She opened the suitcase. In the false bottom of the bag, one small rectangular plastic pouch of black colour was found. The pouch was containing White colour powder. On testing it gave positive indication for narcotic drug Heroin. Five samples each of 5 grams were taken out from the bulk which was weighing 1683 gms. The samples and the bulk was seized. Accordingly, panchnama was drawn. (e) The statement of the appellant was recorded under Section 67 of NDPS Act on 30.12.2009 in the AIU office wherein she stated that she was a South African National and was residing with her family at Edenvale and studied upto tenth standard and had completed a Diploma in call centre. She could read, write, speak and understand English. She was then employed with an Engineering Company as an office assistant and drawing a salary between 3500 to 4000 South African Rands. She had arrived at Hyderabad from Johannesburg on 16.12.2009 on a multiple entry Indian Visa and on 16.12.2009 she took a Spice Jet Flight to Delhi and on her arrival in Delhi she was received by one Deepak whom she had befriended over the Internet and she stayed in the night of 16.12.2009 at Hotel Amrutha Castle in Dwarka area of Delhi. On 17.12.2009, Deepak introduced her to Jennifer and Emmanuel who were an African couple and were living in a place called Big Apple and she lived with the said African couple till 29.12.2009. She went sight seeing and shopping in Delhi with either Jennifer or Deepak. As the appellant bought extra clothes, Deepak offered to buy her a bag. He subsequently gave her a Grey colour hard cabin suitcase of 'Krown' make and she packed her extra belongings in the said suitcase. The appellant in her statement had admitted the recovery and seizure of 1590 gms. of White powder Heroin concealed in the false bottom of the suitcase which was seized under panchnama. However, the appellant stated that she was not aware that the said suitcase which she was carrying as cabin baggage contained narcotic drug, concealed within it. The appellant in her statement had admitted the recovery and seizure of 1590 gms. of White powder Heroin concealed in the false bottom of the suitcase which was seized under panchnama. However, the appellant stated that she was not aware that the said suitcase which she was carrying as cabin baggage contained narcotic drug, concealed within it. (f) It is the prosecution case that the sample was sent to the Dy. Chief Chemist for analysis and as per the report received, the samples tested positive for presence of Diacetyl Morphine (Heroin) and the purity was 67.3%. 3. Charge came to be framed against the appellant - original accused under Section 21 (c) r/w 8(c) and Section 28 r/w 23(c) and 8(c) of the NDPS Act. The appellant pleaded not guilty to the said charge and claimed to be tried. Her defence is that of false implication. It is her further defence that said Deepak who she mentioned in her statement under Section 67 planted the drug on her by putting it in the false bottom of the bag which he had brought for her. After going through the evidence adduced in this case, the learned Special Judge convicted and sentenced the appellant as stated in paragraph 1 above, hence, this appeal. 4. We have heard the learned counsel for the appellant, the learned counsel for Union of India and the learned APP for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned Counsel for both sides, the judgment delivered by the learned Special Judge and the evidence on record for the reasons stated below, we are of the opinion that the conviction is vitiated on account of noncompliance of Section 50 of the NDPS Act. 5. Mr. Khan, the learned counsel for the Appellant submitted that there is noncompliance of Section 50 of the NDPS Act. He submitted that what is to be seen for compliance of the provisions of Section 50 of the NDPS Act is that the accused was first searched for being in possession of drugs on her person, thereafter Grey colour bag which she was carrying was searched. This Grey bag was not checked in baggage but it was being taken by the appellant as cabin baggage along with her. According to Mr. This Grey bag was not checked in baggage but it was being taken by the appellant as cabin baggage along with her. According to Mr. Khan, it is immaterial as to whether the contraband was actually found on the person of the appellant or in the bag but the very fact that the appellant had undergone personal search would make it incumbent on the prosecution to establish that there is due compliance of Section 50 of the NDPS Act. In order to support this contention, Mr. Khan placed reliance on the decision of the Supreme Court in the case of Dilip & Anr. Vs. State of M.P., (2007) 1 SCC 450 : [2007 ALL MR (Cri) 823 (S.C.)]. Mr. Khan pointed out that in the said case, the officer in charge saw two persons coming at fast speed on a scooter. They were stopped. A search of their person was conducted. Nothing was found but on search of the scooter, some black-coloured liquid substance (opium) was found. In the said case, it was argued that the search and seizure was vitiated in law as mandatory statutory requirements contained in Section 50 of the NDPS Act were not complied with. The Supreme Court observed that before seizure of the contraband from the scooter, personal search of the appellants had been carried out and admittedly at that time, the provisions of Section 50 of the NDPS Act, although required in law, had not been complied with. The Supreme Court further observed as under:- "In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions." In the case of Dilip [2007 ALL MR (Cri) 823 (S.C.)] (supra), the decision of the Supreme Court in the case of State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080 : [2009 ALL SCR (O.C.C.) 363] was considered and thereafter. it was observed that the requirement of Section 50 had been given a complete go by. After observing as above, the appeal was allowed. 6. Mr. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080 : [2009 ALL SCR (O.C.C.) 363] was considered and thereafter. it was observed that the requirement of Section 50 had been given a complete go by. After observing as above, the appeal was allowed. 6. Mr. Khan pointed out that in the present case, the appellant has not been informed that she has a "right" to be searched before a Gazetted officer or a Magistrate. In the case of K. Mohanan Vs State of Kerala, (2000) 10 SCC 222 , the Supreme Court while ; following the decision in the case of State of, Punjab Vs. Baldev Singh, (1999) 6 SCC 172 : [2009 ALL SCR (O.C.C.) 363] stated in unambiguous terms that merely asking the accused whether he wishes to be searched before the Gazetted officer or a Magistrate without informing him that he enjoyed a "right" under law in this behalf, would not satisfy the requirements of Section 50 of the NDPS Act. Similar view was taken by the Supreme Court in State of Delhi Vs. Ram Avtar, (2012) 12 SCC 207 : (2012) 1 SCC (Cri) 385 : [2011 ALL SCR 1613]. 7. In Ram Avtar [2011 ALL SCR 1613] (supra), the Supreme Court considered the position of Section 50 prior to amending Act 9 of 2001 and thereafter and observed that the position is the same prior to the amendment and thereafter. It observed that the accused had a right to be informed of the choice available to him; making him aware of the existence of such a right was an obligation on the part of the searching officer. This duty cast upon the officer is imperative and failure to provide such as option, in accordance with the provisions of the act, would render recovery of contraband or illicit substance illegal. 8. Mr. Khan pointed out that the Constitution Bench of the Supreme Court in the case of Vijaysinh Chandubha Jadeja Vs State of Gujarat, (2011) 1 SCC 609 : [2010 ALL MR (Cri) 4023 (S.C.)] after considering all earlier decisions, observed as under:- “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. 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:” (Emphasis supplied) 9. The Supreme Court in Vijaysinh Jadeja's case [2010 ALL MR (Cri) 4023 (S.C.)] (supra), after considering the decision of the Supreme Court in the case of Baldev Singh [2009 ALL SCR (O.C.C.) 363] (supra) observed that Section 50 makes it imperative for the empowered officer to "inform" the 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 recovery of the illicit article suspect and vitiate the conviction and sentence of the accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. 10. In the decision of the Supreme Court in the case of Suresh & Ors. Vs State of M.P., (2013) 1 SCC 550 : [2013 ALL SCR 212], the appellants were merely asked to give their consent for search by the police party and were not apprised of their legal right provided under Section 50 of the NDPS Act. 10. In the decision of the Supreme Court in the case of Suresh & Ors. Vs State of M.P., (2013) 1 SCC 550 : [2013 ALL SCR 212], the appellants were merely asked to give their consent for search by the police party and were not apprised of their legal right provided under Section 50 of the NDPS Act. In the case of Suresh (supra), the Supreme Court observed as under:- "The above Panchnama indicates that the appellants were merely asked to give their consent for search by the police party and not apprised of their legal right provided under Section 50 of the NDPS Act to refuse/to allow the police party to take their search and opt for being searched before the Gazetted officer or by the Magistrate. In other words, a reading of the Panchnama makes it clear that the appellants were not apprised about their 'right' to be searched before a gazetted officer or a Magistrate but consent was sought for their personal search. Merely asking them as to whether they would offer their personal search to him, i.e., the police officer or to gazetted officer may not satisfy the protection afforded under Section 50 of the NDPS Act as interpreted in Baldev Singh's case (supra)." (Emphasis supplied) Thus, Mr. Khan argued that Section 50 makes it imperative for the empowered officer to "inform" the suspect about existence of his "right" and failure to inform the suspect about existence of his said right would cause prejudice to the suspect and it would vitiate the conviction. 11. In the case of Suresh [2013 ALL SCR 212] (supra), the observations in the case of Vijaysinh Jadeja [2010 ALL MR(Cri) 4023 (S.C.)] (supra) are reproduced which states that where the conviction has been recorded only on the basis of the possession of the illicit article recovered from the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act, failure to inform the person concerned about the existence of his right under Section 50 would vitiate the conviction and sentence. In Vijaysinh Jadeja (supra), it was further observed that 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. In Vijaysinh Jadeja (supra), it was further observed that 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. In the case of Suresh (supra), these observations of the Constitution Bench in Vijaysinh (supra) were relied upon. 12. Mr. Khan also relied on the decision of the Supreme Court in the case of Court in the case of Ashok Kumar Sharma Vs State of Rajasthan, 2013(1) Bom.C.R. (Cri) 593 : [2013 ALL SCR 859]. wherein the witness had stated that "he was apprised while telling the reason for being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished.". The Supreme Court observed that the evidence of PW 1 clearly indicates that he had only informed the accused that he can be searched only before a Magistrate or a Gazetted officer, if so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted officer or a Magistrate was not made known to him The Supreme Court was of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. The Supreme Court further observed in paragraph 9 as under:- "We may, in this connection, also examine the general maxim "ignorantia juris non excusat" and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Indisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various law laid down in this country i.e. leave aside the NDPS Act. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various law laid down in this country i.e. leave aside the NDPS Act. We notice this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorized officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure. 13. The above five decisions i.e. K. Mohanan, Vijaysinh, Ram Avtar, Suresh and Ashok Kumar Sharma lay down that the suspect has to be informed that he has a "right" under Section 50 to be searched before a Gazetted officer or a Magistrate and non compliance of this mandatory provision would vitiate the conviction. 14. Since the main question revolves around the right to inform the accused about his option under Section 50, it would be relevant to consider the evidence of the witnesses in this case. Three officers and one panch witness have been examined on this aspect i.e I.O. PW 2 Shri. Phani Kumar, the Superintendent AIU. PW 3 Shri. Adate, I.O. PW 5 Shri. Kadam Kumar and panch witness PW 10 Ms. Shetty. PW 2 Shri. Phani Kumar, the Intelligence Officer, has stated that he told the accused that she can opt for search in presence of a Magistrate or a Gazetted officer. PW 3 Shri. Adate, the Superintendent AIU, is totally silent regarding informing the appel1ant about Section 50. PW 5 I.O. Shri. Kadam Kumar, in relation to Section 50 has stated that the accused was informed that her personal search was to be taken in presence of a Magistrate or a Gazetted officer. Panch witness PW 10 Ms. Shetty states that the officer told the passenger that she needs to be checked in presence of a Gazetted officer and a lady custom officer. Thus, these witnesses who have deposed about Section 50 in their substantive evidence do not say that the accused was informed that she had a "right'" to be searched before a Gazetted officer or a Magistrate. In such case, the mandatory requirement under Section 50 is clearly not complied with. 15. Thus, these witnesses who have deposed about Section 50 in their substantive evidence do not say that the accused was informed that she had a "right'" to be searched before a Gazetted officer or a Magistrate. In such case, the mandatory requirement under Section 50 is clearly not complied with. 15. In answer, the learned counsel Union of India submitted that it was a case of chance recovery, hence, there was no question of compliance of Section 50 of the NDPS Act. She submitted that there was no prior information in the present case that the appellant was carrying any contraband, hence, compliance with Section 50 is not necessary. In answer, Mr. Khan pointed out that once the AIU officers had reason to believe that the accused is carrying drugs, Section 50 of the NDPS Act has to be complied with. 16. Mr. Khan pointed out that three Judges bench of the Supreme Court in the case of Mohinder Kumar Vs State, Panaji, Goa, (1998) 8 SCC 655 observed that from the stage an officer has "reason to believe" that the accused person is in custody of narcotic drugs, the officer was under an obligation to proceed further in the matter in accordance with the provisions of the Act. In the case of Mohinder Kumar (supra), it was a chance recovery. The accused persons were trying to run away on seeing the police. As the conduct of the accused persons raised suspicion, the police officer went there and effected search, seizure and arrest. In the case of Mohinder Kumar (supra), the officer had purely accidentally stumbled upon the offending articles. Even in such circumstances, the Supreme Court observed that once the officer had reason to believe that the accused persons were in custody of narcotic drugs, he was under obligation to comply with the provisions of the NDPS Act including Section 50. In the case of Mohinder Kumar (supra), the Supreme Court has clarified that even if the search is not effected on prior information and the officer carrying such search happens to be an empowered officer, then from the stage, he had reason to believe that the accused person was in possession of the narcotic drugs, the empowered of1icer was under an obligation to proceed further in the matter in accordance with the provisions of the Act. 17. In the case of Ndukew Onuohe Vs Asstt. 17. In the case of Ndukew Onuohe Vs Asstt. Collector of Customs AIU, Bombay, 1998(1) Mh. L. J 435, this Court relied on the decision in the case of Mohinder Kumar (supra) and held that Section 50 would be attracted. In the case of Ndukew (supra), the appellant was to board a flight from Sahar International Airport. She was carrying a briefcase. While she proceeded to the Boarding Gate, Custom's sniffer dog barked after sniffing her shoes thereby giving indication that there was some narcotic substance hidden in the shoes. This Court observed that the customs officers had reason to believe that the appellant was carrying narcotic substances based on the fact that the sniffer dog barked after sniffing the shoes of the appellant. This Court held that the moment the authorities were suspicious that the appellant was carrying the contraband goods, they asked her to remove her shoes and also to open the brief case. This conduct of the officers who were present at the time of search would show that it cannot be said to be a chance recovery and once the officers had reason to believe that the appellant was in possession of narcotic substances, the procedure envisaged under Section 50 of the NDPS Act has to be followed as otherwise the whole search will be vitiated. 18. The facts in the present case are similar to the facts in Ndukew Onuohe (supra). In the present case also the sniffer dog barked at the handbag. PW 1 Shri. Bhosale and PW 2 Shri. Phani Kumar have specifically stated that Grey coloured suitcase carried as hand bag was sniffed by the sniffer dog and gave positive indication of some "narcotic substance". Moreover, PW 3 Supdt. AIU Shri. Adate has specifically stated that he was informed by PW 1 I.O. Shri. Bhosale that he had intercepted one passenger and he suspected that the passenger was carrying narcotic drugs. Thus, in the present case, it cannot be said that it is a chance recovery and once the officer had reason to believe that the appellant was carrying narcotic drug, they had to comply with the provisions of Section 50 of the NDPS Act. 19. The learned counsel for Union of India vehemently argued that there is no evidence to suggest that the custom officers were aware that the appellant was carrying narcotic drugs. 19. The learned counsel for Union of India vehemently argued that there is no evidence to suggest that the custom officers were aware that the appellant was carrying narcotic drugs. She submitted that mere suspicion or grave suspicion cannot be equated with "reason to believe". In support of this contention, she relied on a decision of the Supreme Court in the case of State of H.P. Vs. Sunil Kumar, Decision dated 05.03.2014 in Criminal Appeal No.1101 of 2005. In Sunil Kumar, the accused after he got down from the bus behaved in a suspicious manner, hence, it was held that mere suspicion, even if it is positive suspicion cannot be equated with "reason to believe". The actual observation of the Supreme Court is as under:- "It is true that Sunil Kumar behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the bus. However, there is no evidence to suggest that before he was asked to alight from the bus, the police officers were aware that he was carrying a narcotic drug, even though the Chamba area may be one where such drugs are easily available. At best, it could be said the police officers suspected Sunil Kumar of carrying drugs and nothing more. Mere suspicion even it is "positive suspicion" or grave suspicion cannot be equated with "reasons to believe." In this context, we would like to advert to the evidence of PW 1 I.O. Shri Bhosale, PW 2 I.O. Shri. Phani Kumar and PW 3 Supdt. In AIU Shri. Adate. PW 1 Shri. Bhosale has stated that he found the conduct of the appellant suspicious, hence, he asked her whether she was carrying any narcotic drug. She replied in the negative. PW 1 Shri. Bhosale was not satisfied, hence, he called dog handler Shri. Mahadeshwar. Shri. Mahadeshwar came along with the sniffer dog. Shri. Bhosale expressed his doubt to Shri. Mahadeshwar and said that the dog should sniff. The dog sniffed and started barking. According to PW 1 Shri. Bhosale, it was a "positive indication" for drugs. He then informed his batch in charge PW 3 Supdt. AIU Shri. Adate. Thus, when the dog started barking, the officer had reason to believe that the appellant was carrying drugs, hence, from then onward Section 50 of the NDPS Act should have been complied with. 20. According to PW 1 Shri. Bhosale, it was a "positive indication" for drugs. He then informed his batch in charge PW 3 Supdt. AIU Shri. Adate. Thus, when the dog started barking, the officer had reason to believe that the appellant was carrying drugs, hence, from then onward Section 50 of the NDPS Act should have been complied with. 20. PW 2 I.O. Shri. Phani Kumar has stated that PW 3 Shri. Adate informed him that Shri. Bhosale and the dog handler Shri. Mahadeshwar had intercepted one passenger in departure customs area. He was asked to arrange for panch witnesses. When he reached the spot, he found that the appellant was having one Grey colour suit case of Krown make which was a hand bag. She was also having a Maroon colour purse with her. PW 2 Shri. Phani Kumar asked the appellant in presence of the witnesses whether she was carrying any contraband article or narcotic drug on her person or in the baggage. She replied in the negative, however, Shri. Phani Kumar was not satisfied with the reply given by the appellant, hence, he called the dog handler to sniff the baggage. The dog after sniffing Grey coloured suitcase gave positive indication by barking. By positive indication, it meant positive indication for narcotic drugs. 21. PW 3 Shri. Adate has stated that he received a phone call from PW 1 Shri. Bhosale. Shri. Bhosale informed him that he along with the dog handler Shri. Mahadeshwar had intercepted one passenger. He suspected that the passenger was carrying some narcotic drugs in her baggage, hence, Shri. Adate immediately rushed to the said custom counter. He saw a lady passenger, PW 1 Shri. Bhosale and Shri. Mahadeshwar with a sniffer dog. Shri. Bhosale told him that Grey coloured suitcase carried as hand bag was sniffed by the sniffer dog and gave positive indication of some narcotic substance. 22. Thus, the evidence of the above witnesses clearly shows that when the dog sniffed the Grey coloured suitcase and barked, that was a positive indication of some narcotic substance. In such case, it cannot be said that it is a case of mere suspicion but it is a case of having "reason to believe" that the accused was carrying narcotic drugs, hence, from this stage onwards, the officers should have complied with the mandatory provisions of the NDPS Act including Section 50. In such case, it cannot be said that it is a case of mere suspicion but it is a case of having "reason to believe" that the accused was carrying narcotic drugs, hence, from this stage onwards, the officers should have complied with the mandatory provisions of the NDPS Act including Section 50. Moreover, we have to bear in mind that the decision in the case of Sunil Kumar (supra) is rendered by a bench of two Judges whereas the decision in the case of Mohinder Kumar is rendered by three Judges. Obviously, the decision in the case of Mohinder Kumar (supra) holds the fort that if the officer has "reason to believe" that the accused person is in custody of narcotic drug, the officer was under an obligation to proceed further in accordance with the provisions of NDPS Act. 23. Learned counsel for Union of India thereafter submitted that it was not necessary to comply with the provisions of Section 50 of the NDPS Act in the present case as the contraband was not found on the person of the appellant but it was found in the Grey bag which was being taken by the appellant as cabin baggage. Thus, her contention is that as the contraband was found in the handbag of the appellant and not on her person, hence, in such case. Section 50 would not he attracted. In support of her contention, she has placed reliance on a decision of the Supreme Court in the case of State of H.P. Vs. Pawan Kumar, (2005)4 SCC 350 : [2004 ALL MR(Cri) 3475 (S.C.)]. In the said, decision, it was held that Section 50 would come into play only in the case of personal search of the accused and not of an article like a bag, container etc. which the accused may be carrying. 24. Mr. Khan drew our attention to a decision of the Supreme Court in the case of Union of India Vs. Shah Alam & Anr., 2009(16) SCC 644 : 2009 (8) JT 1 : [2009 ALL SCR 2214]. He pointed out that in the said case, the trial Court had acquitted the accused on two grounds :- one was that Section 50 was not complied with and the other was that independent witnesses were not examined. Shah Alam & Anr., 2009(16) SCC 644 : 2009 (8) JT 1 : [2009 ALL SCR 2214]. He pointed out that in the said case, the trial Court had acquitted the accused on two grounds :- one was that Section 50 was not complied with and the other was that independent witnesses were not examined. The Supreme Court carefully considered the decision in the case of Pawar Kumar [2004 ALL MR (Cri) 3475 (S.C.)] (supra) wherein it was observed as under:- "A bag, briefcase or any such article or container, etc. can, under no circumstances be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." The Supreme Court in the case of Shah Alam [2009 ALL SCR 2214] (supra) after considering the decision of the Supreme Court in the case of Pawar Kumar [2004 ALL MR (Cri) 3475 (S.C.)] (supra) relied on earlier decision of the Supreme Court in the case of Dilip [2007 ALL MR (Cri) 823 (S.C.)] (supra) wherein it was observed as under:- 12. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with................. 16. Before seizure of the contraband from the scooter, personal search of the appellants had been carried out and, admittedly, even at that time the provisions of Section 50 of the Act, although required in law, had not been complied with................. 16. In this case, the provisions of Section 50 might not have been required to be complied with so far as the search of scooter is concerned, but, keeping in view the fact that the person of the appellants was also searched, it was obligatory on the part of PW 10 to comply with the said provisions. It was not done." After observing as above, the appeal was allowed. 25. Mr. Khan pointed out that the decision of the Supreme Court in the case of Pawan Kumar (2004 ALL MR (Cri) 3475 (S.C.)] (supra) has also been considered by the Supreme Court in a decision in the case of Noor Aga Vs. State of Punjab & Anr., Decision dated 09.07.2008 in Criminal Appeal No. 1034 of 2008 : [2008 ALL SCR 2161] [Arising out of SLP (Cri) 5597 of 2006] (Coram : S.B. Sinha & V.S. Sirpurkar, JJ). In Noar Aga's case, it was held that as the appellant's person had also been searched, Section 50 would be attracted though the drugs were found in a carton which was being carried by the appellant. Thus, on going through the later judgments of the Supreme Court wherein the decisions in the case of Paw an Kumar [2004 ALL MR (Cri) 3475 (S.C.)] (supra) and Baldev Singh [2009 ALL SCR (O.C.C.) 363] (supra) have been considered, the Supreme Court has held that when the person of the accused is searched irrespective of the tact that the drugs were found in a bag, vehicle etc., Section 50 would be attracted and non compliance would vitiate the conviction. 26. Mr. Khan also placed reliance on a decision of the Supreme Court in the case of Gurjant Singh @ Janta Vs State of Punjab, Decision dated 28.10.2013 in Criminal Appeal No. 1868 of 2013 : [2013 ALL SCR 3759] (@ SLP (Crl) No. 3407 of 2012 (Coram: Surinder Singh Nijjar & Fakkir Mohamed Ibrahim, JJ), wherein the drugs were found in gunny bags kept on the tractor. In the said case, after considering the decision in the case of Paw an Kumar [2004 ALL MR (Cri) 3475 (S.C.)] (supra) as well as Baldev Singh (2009 ALL SCR (O.C.C.) 363) (supra), the Supreme Court held that Section 50 of the NDPS Act is attracted as the search of the person of the accused was also taken. The prosecution had claimed in the said case that the search was taken in presence of the Gazetted officer, however, it was found that on the date of the search, the officer was not actually a Gazetted officer, hence, the Supreme Court held that Section 50 of the NDPS Act was not complied with and the accused was acquitted. 27. Learned counsel for Union of India also tried to place reliance on a decision of the Supreme Court in the case of Ajmer Singh Vs. State of Haryana, (2010) 3 SCC 746 : [2010 ALL MR (Cri) 1323 (S.C.)]. She pointed out that in the said case the bag was on the shoulder and the Supreme Court held that Section 50 is not applicable. On perusal of the said decision, it is noticed that only the bag was searched and the person of the accused was not at all searched, hence, this decision on the facts would not be applicable to the present case. 28. Thereafter, learned counsel for Union of India argued that in many cases, personal search of the person was taken before the search of the bag, yet it was held that Section 50 is not applicable. She has placed reliance on a decisions in the cases of Ajmer Singh [2010 ALL MR (Cri) 1323 (S.C.)] (supra), Madan Lal Vs. State of H.P., (2003) 7 SCC 465 : [2003 ALL MR(Cri) 2412 (S.C.)], Ravindran @ John Vs. Sup. of Customs, (2007) 6 SCC 410 : [2007 ALL MR (Cri) 2965 (S.C.)] and Ansar Ali Yusuf Khan Vs. Union of India, 2012 ALL MR (Cri) 284. As stated earlier, as far as the case of Ajmer Singh [2010 ALL MR (Cri) 1323 (S.C.)] (supra) is concerned, the person of the accused was not at all searched and only the bag was searched. Union of India, 2012 ALL MR (Cri) 284. As stated earlier, as far as the case of Ajmer Singh [2010 ALL MR (Cri) 1323 (S.C.)] (supra) is concerned, the person of the accused was not at all searched and only the bag was searched. As far as the decision in the case of Madan Lal [2003 ALL MR (Cri) 2412 (S.C.)] (supra) is concerned, it has been considered in the decision in the case of Paw an Kumar [2004 ALL MR (Cri) 3475 (S.C.)] (supra) and the decision in the case of Pawan Kumar (supra) has been considered in the case of Shah Alam [2009 ALL SCR 2214] (supra) wherein it was held that if the person is searched and even if no contraband is found on his person and it is found in the bag, Section 50 is attracted and non compliance there of would vitiate the conviction. 29. As far as the decisions in the case of Ravindran @ John [2007 ALL MR (Cri) 2965 (S.C.)] (supra) and Ansar Ali Yusuf Khan (supra) are concerned, this specific question did not arise for consideration in the said cases which arose for consideration in the case of Dilip [2007 ALL MR (Cri) 823 (S.C.)] (supra) which has been allowed in Shah Alam [2009 ALL SCR 2214] (supra) and Noor Aga [2008 ALL SCR 2161] (supra). The question if the contraband is found in a bag but the person of the accused is also searched, whether it is obligatory on the part of investigating agency to comply with the provisions of Section 50 did not arise for consideration and hence, there is no finding on this aspect in the said decision. 30. Thereafter. learned counsel for Union of India relied on a decision in the case of V.S. Anandan Vs. Union of India, Decision dated 01.08.2013 in Criminal Appeal No. 451 of 2010: [2014 ALL MR(Cri) 1312] in which question arose for consideration that where the contraband is found in the bag and the person of the accused is searched. whether compliance of Section 50 is necessary. Learned counsel for Union of India pointed out that in this decision, it was held that compliance of Section 50 is not necessary as the contraband was found in the bag. whether compliance of Section 50 is necessary. Learned counsel for Union of India pointed out that in this decision, it was held that compliance of Section 50 is not necessary as the contraband was found in the bag. On perusal of the said decision, it is found that the said decision is rendered by a learned single Judge of this Court and moreover, the decisions in the case of Shah Alam [2009 ALL SCR 2214] (supra), Noor Aga [2008 ALL SCR 2161] (supra) and Gurjant Singh [2013 ALL SCR 3759] (supra) were not pointed out to this Court. Had these decisions been pointed out to this Court, the learned single Judge would have taken a different view. In any event as it is a decision of a learned single Judge, the said decision is not binding on us. 31. Thereafter, the learned counsel for Union of India placed reliance on decisions in the cases of Ram Swaroop Vs. State (Govt of NCT), 2013 Cri. L. J. 2997 : AIR 2013 SC 2068 : [2013 ALL SCR 2210], Kashmiri Lal Vs. State of Haryana, (2013) 6 SCC 595 : [2013 ALL SCR 2219], Kalema Tumba Vs. State of Maharashtra & Anr., (1999) 8 SCC 257 : 11998 ALL MR (Cri) 596J & Balbir Kaur Vs. State of Punjab, AIR 2009 SC 3036 : [2009 ALL SCR 2687]. She pointed out that in the said decisions, it was held that Section 50 does not apply to search of a bag or a vehicle. On perusal of the said decisions, it is seen that the question which arose for consideration before this Court and which arose for consideration in the cases of Dilip [2007 ALL MR (Cri) 823 (S.C.)] (supra), Noor Aga [2008 ALL SCR 2161] (supra) and Shah Alam [2009 ALL SCR 2214] (supra), did not specifically arise for consideration when those cases were decided and hence, there are no findings on this issue that when the person of the accused is also searched, whether compliance of Section 50 is necessary. 32. Thereafter, the learned counsel for Union of India placed reliance on five decisions of the Supreme Court wherein acquittals on the ground of non-compliance of Section 50 were reversed by the Supreme Court. They are as under:- 1. State of Haryana Vs. Mai Ram, (2008) 8 SCC 292 : [2009 ALL MR (Cri) 553 (S.C.)]; 2. State of Rajasthan Vs. Thereafter, the learned counsel for Union of India placed reliance on five decisions of the Supreme Court wherein acquittals on the ground of non-compliance of Section 50 were reversed by the Supreme Court. They are as under:- 1. State of Haryana Vs. Mai Ram, (2008) 8 SCC 292 : [2009 ALL MR (Cri) 553 (S.C.)]; 2. State of Rajasthan Vs. Daulat Ram, (2005) 7 SCC 36 : [2005 ALL MR (Cri) 3130 (S.C.)]; 3. State of Punjab Vs. Balbir Singh, (2004) 8 SCC 702 : [2004 ALL MR (Cri) 3441 (S.C.)]; 4. State of Haryana Vs. Suresh, (2007) 15 SCC 186 : [2007 ALL MR (Cri) 2020 (S.C.)] and 5. State of Rajasthan Vs. Ratan Lal, (2009) 11 SCC 464 It is noticed that similar issue did not arise for consideration in the above five decisions or arose in Shah Alam [2009 ALL SCR 2214] (supra). It is noticed that all these decisions are before 11.06.2009 that is the date on which the decision in the case of Shah Alam (supra) was rendered. Thus, obviously, while rendering the above mentioned five decisions, the decision in the case of Shah Alam (supra) could not have been considered. In the case of Shah Alam (supra) which has been rendered a1ter all these 5 decisions have been rendered, it has clearly been held that if the contraband is found in a bag but the person of the accused is also searched, though nothing is found on the person of the accused, Section 50 of the NDPS Act would be attracted and non-compliance would vitiate the conviction. 33. Thereafter, learned counsel for Union of India submitted that the Gazetted officer was present during search and seizure and hence, there is no question of any prejudice being caused to the appellant. In support of this contention, she has placed reliance on the decisions in the cases of State of Rajasthan Vs. Ram Chandra, (2005) 5 SCC 151 and Jeevanantham Vs. State, (2004) 5 SCC 230 : [2004 ALL MR (Cri) 2229 (S.C.)]. She submitted that according to these two decisions, the accused has to show the prejudice caused to the accused if there is noncompliance by the search and seizure party. As far as this contention is concerned. Ram Chandra, (2005) 5 SCC 151 and Jeevanantham Vs. State, (2004) 5 SCC 230 : [2004 ALL MR (Cri) 2229 (S.C.)]. She submitted that according to these two decisions, the accused has to show the prejudice caused to the accused if there is noncompliance by the search and seizure party. As far as this contention is concerned. it has been held by the Supreme Court in the cases of Mohanan, Vijaysinh Jadeja, Ram Avtar [2011 ALL SCR 1613], Ashok Kumar Sharma [2013 ALL SCR 859] and Suresh [2013 ALL SCR 212] (supra) that the accused has to be informed of his "right" to be searched before a Gazetted officer or a Magistrate. He has to be given both the options and noncompliance of Section 50 would vitiate the conviction. Moreover, the decisions in the case of Ram Chandra and Jeevanantham are decisions by a bench of two Judges, whereas the Supreme Court in a decision by the Constitution Bench in the case of Vijaysinh Jadeja [2010 ALL MR (Cri) 4023 (S.C.)] (supra) has observed that Section 50 makes it imperative for the empowered officer to inform the suspect about the existence of his right that if he so required, he shall be searched before a gazetted officer or a Magistrate and failure to inform the suspect about the existence of his right would cause prejudice to him. Thus, from this decision, it is clear that non-informing of the right under Section 50 itself causes prejudice to the suspect. 34. In the present case, the appellant was not informed of her right to be searched before a Gazetted officer or a Magistrate, thus, there is non compliance of Section 50 of the NDPS Act which has been held to be mandatory. The compliance of the requirement under Section 50 of informing the suspect of his right to hold search and seizure before a Gazetted officer or a Magistrate is not an empty formality. In other words, the offer to be searched to the person in presence of a Gazetted officer or a Magistrate should really serve the purpose of ensuring that there was every bonafide effort taken by the prosecution to bring forth the grave offence of possession of narcotic substance and proceed against the person by way of prosecution and thereby establish the truth before the appropriate judicial forum. In the same breath such a course of compliance of Section 50 would also enable the person accused of such a grave offence to be convinced that the presence of such an independent Gazetted officer or a Magistrate would also enable the person proceeded against to demonstrate that there was no necessity for holding any search on him and thereby persuade the concerned Gazetted officer or Magistrate to protect his fundamental right of freedom, from being unlawfully proceeded against. In other words, the purpose of Section 50 was to ensure that the holding of a search and seizure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities. Therefore, such a requirement of law prescribed under Section 50 cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it. It is well settled that the offence committed under the NDPS Act is a grave one, hence, procedural safeguards provided therein in terms of Section 50 of the NDPS Act have to strictly complied with. 35. In the facts of the present case, we find that the alleged recovery of heroin from the appellant was made in complete violation of the provisions of Section 50 of the NDPS Act, in such case, the conviction is vitiated and is accordingly set aside. The appellant is acquitted of all the offences. Appeal is allowed. Appeal allowed.