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Himachal Pradesh High Court · body

2015 DIGILAW 731 (HP)

Tarsem Lal v. State Of Himachal Pradesh

2015-06-19

RAJIV SHARMA, SURESHWAR THAKUR

body2015
JUDGMENT : Rajiv Sharma, J. Since both the appeals have arisen out of the same judgment, both the appeals were taken up together and are being disposed of this common judgment. 2. Cr. Appeal No. 10/2010 has been instituted against Judgment dated 31.12.2009 by the learned Special Judge, Fast Track Court, Chamba, District Chamba, in Sessions Trial No. 17/2009, whereby appellant-accused (hereinafter referred to as 'accused' for convenience sake), who was charged with and tried for offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1.00 Lakh, in default of payment of fine, to further undergo rigorous imprisonment for six months. Cr. Appeal No. 326/2010 has been filed by the State against the same judgment, whereby respondent-accused Rajesh Kumar was acquitted. 3. Case of the prosecution, in a nutshell, is that police party headed by Yudhbir Singh set up a Naka at Toll Tax barrier near police post Banikhet. At about 3.00 am, a car bearing No. PB-02-AU-6363 came from Banikhet Bus stand side. Car was stopped by the police party. Accused Rajesh Kumar was driving the car. Tarsem Lal was lying on the backseat of the car. He had covered himself with a blanket. He was asked to remove the blanket. A bag of blue colour was found kept on his lap. He was asked to come out of vehicle. He was hesitant to come out of vehicle. Police became suspicious that the accused might be carrying some narcotic substance. ASI Yudhbir Singh informed the accused person of their legal right to be searched before a Magistrate or a Gazetted Officer. Accused consented to be searched by the Police. Memo was prepared to this effect. The bag was checked and it contained Charas which weighed 5.6 kg. Two samples of 25 gms each were separated which were put in an empty cigarette packets and sealed with seal impression 'K'. Balance Charas was also put in different parcel and sealed with seal impression of 'K'. Vehicle was also taken into possession. Rukka was sent to the police station, on the basis of which FIR No. 23/2009 was recorded. Case property was produced before the SHO Hakam Singh. He resealed the same with seal 'H' and deposited with MHC. Balance Charas was also put in different parcel and sealed with seal impression of 'K'. Vehicle was also taken into possession. Rukka was sent to the police station, on the basis of which FIR No. 23/2009 was recorded. Case property was produced before the SHO Hakam Singh. He resealed the same with seal 'H' and deposited with MHC. Special Report was also sent to the Superintendent of Police, Chamba. Challan was put up in the Court after completing all codal formalities. 4. Prosecution examined as many as sixteen witnesses to prove its case against the accused. Accused were also examined under Section 313 CrPC. They denied the allegations. Accused-Tarsem Lal was convicted and sentenced by the learned trial Court as noticed above. Hence, Cr. Appeal No. 10/2010. Accused-Rajesh Kumar was acquitted by the learned trial Court. Hence, Cr. Appeal No. 326/2010 by the State. 5. Mr. Chandranarayana Singh, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 6. Mr. M.A. Khan, Additional Advocate General appearing on behalf of the State, has vehemently argued that the prosecution has proved its case against the accused. 7. We have heard the learned counsel for the parties and also gone through the record carefully. 8. PW-1 Suneel Kumar testified that he was serving at the Army Cantonment Barrier. He was on duty alongwith Tilak Raj at the Barrier. Police laid Naka a little ahead of the Cantonment Barrier towards Banikhet. A car bearing registration number of Punjab came from Chamba side. It was stopped. There were three persons in the car. There was a bag in the car. Third person managed to run away from the car. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that there were only two persons occupying the car, one was driver and another occupant was on the backseat. He did not see person lying in backseat covered with blanket. He did not know that recovered bag was on the lap of the Tarsem. However bag was recovered from the backseat. He admitted that police gave option to both the accused to be searched by a Magistrate or a Gazetted Officer as it was their right. Accused consented to be searched by the police party. He admitted his signatures on Ext. However bag was recovered from the backseat. He admitted that police gave option to both the accused to be searched by a Magistrate or a Gazetted Officer as it was their right. Accused consented to be searched by the police party. He admitted his signatures on Ext. PW-1/A. He also admitted that Tilak Raj and Roop Lal put their signatures on Ext. PW-1/A and Ext. PW-1/B as witnesses. He also admitted that recovered bag was searched in the presence of witnesses and accused. It contained Charas in the shape of sticks. It was weighed. Charas weighed 5.6 kg. He denied that two samples of 25 gms each were separated from the Charas and put in cigarette packets and parceled and sealed in his presence. He also denied that seals were fixed on the parcels in his presence. He also denied that sample seal was taken in his presence. Volunteered that his signatures were taken later on, on sample mark A-1 by the police. He admitted his signatures on site plan mark A-2. He also admitted his signatures on Ext. PW-1/B as well as on Ext. P1, P2, P3 and P4. He denied the suggestion that parcel was sealed in his presence. He denied that seal after use was given to him. He admitted that he had appended his signatures on Ext. PW-1/A, PW-1/B, PW-1/C and PW-1/D after going through their contents. He was also cross-examined by the learned advocate appearing on behalf of the accused. In his cross-examination by the learned counsel for the accused, he admitted that police chowki was situated at a distance of 10 yards from the Barrier. He admitted that accused were taken to Police Chowki. He also admitted that Boru was taken to Police Chowki. He remained on duty at Barrier. He was called about 10 minutes after taking accused to the police chowki and his signatures were obtained. When he was called to police post, by that time, parcels had already been prepared and other papers had also been filled in by that time. His signatures were obtained thereafter. He came back to the Barrier. He denied the suggestion that police told him that they had recovered Bhang and he should put his signatures. Volunteered that police first recovered Bhang and took him to police Chowki and asked him to put his signatures. His signatures were obtained thereafter. He came back to the Barrier. He denied the suggestion that police told him that they had recovered Bhang and he should put his signatures. Volunteered that police first recovered Bhang and took him to police Chowki and asked him to put his signatures. Police did not give any option to the accused in his presence whether they wanted to be searched by a Magistrate or a Gazetted Officer or by the police party. 9. PW-2 Roop Singh deposed that on 1.2.2009 he was associated with the police party headed by ASI Yudhbir Singh. He was present at Cantonment Barrier Banikhet and Tilak Raj and Suneel Kumar were also present on duty at Cantonment Barrier. Police checked the vehicle. Two persons were occupying the vehicle. Persons occupying the car were directed to come out of the vehicle. ASI Yudhbir Singh gave option to the accused by uttering the words, "that he was suspecting that you were possessing contraband and your vehicle was required to be searched and whether you wanted to give your search before the Magistrate, or to the gazetted officer of police or to the police party present on the spot." Accused consented to be searched by the police party. Consent memo Ext. PW-1/A was prepared. Thereafter, Yudhbir Singh gave his personal search. Bag was found to be in lap of the accused Tarsem, which was searched in the presence of witnesses which contained Boru of white colour which was tied with string. Boru was searched and found to contain Charas in the shape of sticks. It weighed 5.6 kg. Out of recovered Charas, two samples of 25 grams each were drawn and put in cigarette packets and sealed with seal 'K'. Balance Charas alongwith Boru and bag was parceled and sealed with same seal 'K'. NCB form was filled in. Seal, after use, was handed over to Suneel Kumar. Seizure memo was prepared. Case property was produced while recording statement of PW-2. He also admitted in his cross-examination that police Chowki was about 10 meters from the cantonment barrier. He admitted that Rukka was sent before commencing the proceedings. He also admitted that the road remains busy throughout day and night. He also admitted that there was no provision of light in the rain shelter. Volunteered that there was provision of light outside rain shelter. He admitted that Rukka was sent before commencing the proceedings. He also admitted that the road remains busy throughout day and night. He also admitted that there was no provision of light in the rain shelter. Volunteered that there was provision of light outside rain shelter. He was not in a position to narrate the exact time which was spent by the Tilak Raj and Suneel Kumar alongwith the police party when the proceedings were carried out. He could not tell even by guess work whether they remained present for 10, 20 or 30 minutes alongwith the police party. He did not even by guess work at what time rukka was sent to the police station. 10. PW-3 Sanjay Kumar also deposed the manner in which accused were nabbed. Search, seizure and sealing process was completed at the spot. Rukka was given to him after preparing seizure memo and after filling NCB form. 11. PW-4 Om Parkash is a formal witness. 12. PW-5 Shekhar deposed that on 2.2.2009, MHC Ashok Kumar handed over to him one sample parcel duly sealed with seals alongwith sample seals, NCB form vide RC No. 14/2009 for being taken to FSL Junga. He delivered the parcel on 3.2.2009 and obtained receipt on the RC and returned the RC to MHC on his return. 13. PW-6 Ashok Kumar deposed that he was posted as IO in Police Station Dalhausie since 2006. He was officiating as MHC on 2.2.2009. He handed over one parcel alongwith NCB forms, docket, copy of FIR and seizure memo to Shekhar Kumar for being taken to FSL Junga for examination vide RC No. 14/2009. 14. PW-7 Bhajan Singh deposed that on 1.2.2009, Hakam Singh deposited with him three parcels sealed with three seals of 'K' and three seals of 'H' each alongwith NCB form, sample seals for being kept in Malkhana. Entries were made in the Malkhana Register. He kept the case property in the Malkhana vide entry at Sr. No. 76/09. He proved copy of Malkhana register Ext.PW-7/A. He admitted in his cross-examination that there was no reference of deposit of NCB form in the Malkhana Register. Volunteered that he did not record in the Malkhana Register as it was not a case property. 15. PW-8 Pritam Chand and PW-9 Sanjeev Bhatiya are formal witnesses. 16. No. 76/09. He proved copy of Malkhana register Ext.PW-7/A. He admitted in his cross-examination that there was no reference of deposit of NCB form in the Malkhana Register. Volunteered that he did not record in the Malkhana Register as it was not a case property. 15. PW-8 Pritam Chand and PW-9 Sanjeev Bhatiya are formal witnesses. 16. PW-10 Manmohan Singh deposed that he handed over his car at about 3-4 pm on 31.1.2009. 17. PW-11 Hakam Singh deposed that he recorded FIR Ext. PW-11/A after receiving Rukka. ASI Yudhbir Singh handed over to him two sample parcels containing 25 grams Charas each and one big parcel containing 5.6 kgs Charas. Again stated that 5.50 kgs. They were sealed with seal 'K' and NCB form for resealing purpose. He resealed all the parcels with seal 'H' and handed over case property to MHC Dalhausie to be kept in Malkhana. 18. PW-12 Mazid Mohammad also deposed the manner in which accused was nabbed and codal formalities of seizure and sampling were completed at the spot. In his cross-examination, he has admitted that option to be searched by a Magistrate or a Gazetted Officer was given prior to conducting search of vehicle. 19. PW-13 Anuj Kumar also deposed the manner in which accused was nabbed and codal formalities of seizure and sampling were completed at the spot. In his cross-examination, he has admitted that in his presence, IO has given option to the accused to be searched by a Magistrate or a Gazetted Officer or police persons at the spot. 20. PW-14 Raj Kumar is a formal witness. 21. PW-15 Rajesh Kumar deposed that ASI Yudhbir Singh handed over to Hakam Singh a big parcel said to have contained 5.6 kg Charas, sealed with three seals of 'K', two sample parcels said to have contained 25 grams Charas each sealed with three seals of 'K' and NCB form for resealing purpose. Hakam Singh resealed all the parcels with three seals of 'H' and prepared resealing memo Ext. PW-11/B to that effect. 22. PW-16 Yudhbir Singh has also deposed the manner in which accused was apprehended and codal formalities of seizure and sampling were completed at the spot. Accused were given option when the police was suspicious that they possessed narcotic substance, that whether they wanted to be searched by a Magistrate or a Gazetted Officer or by the police party on the spot. Accused were given option when the police was suspicious that they possessed narcotic substance, that whether they wanted to be searched by a Magistrate or a Gazetted Officer or by the police party on the spot. Accused consented to be searched by the police party. He handed over case property to Hakam Singh after completing all the codal formalities. In his cross-examination, he has admitted that in the site plan, Ext. PW-16/B, rain shelter has not been shown. He also admitted that Suneel and Tilak Raj did not remained present with him throughout the proceedings. Again stated that they remained present with him during the course of proceedings. Option was given to the accused persons only once that too at the time of search of vehicle and no fresh option was given to the accused at the time of conducting personal search. 23. We have gone through the consent memo Ext. PW-1/A. It does not state that accused had a legal right to be searched before a Magistrate or a Gazetted Officer. There is another illegality in Ext. PW-1/A. Accused have been asked to give their option in writing whether they wanted to be searched before a Magistrate or a Gazetted Officer or police officer. Requirement of law is that the option is to be given by the accused whether he wants to be searched before a Magistrate or a Gazetted Officer. There are only two options. PW-2 HC Roop Singh has also deposed that the accused were told by the IO whether they wanted to give search before a Magistrate or a Gazetted Officer or to the police party present at the spot. PW-13 Anuj Kumar has stated that IO gave option to the accused to be searched by a Magistrate or a Gazetted Officer or police persons at the spot. PW-16 Yudhbir Singh IO has also deposed that accused were asked to give their personal search before a Magistrate or a Gazetted Officer or the police present at the spot. Moreover, accused have been collectively asked to give their option to be searched by a Magistrate or a Gazetted Officer. Consent is required to be obtained individually. 24. PW-12 Mazid Mohammad has also stated that option to be searched by a Magistrate or a Gazetted Officer was given prior to search of vehicle and option was given only once that too before conducting search of the vehicle. Consent is required to be obtained individually. 24. PW-12 Mazid Mohammad has also stated that option to be searched by a Magistrate or a Gazetted Officer was given prior to search of vehicle and option was given only once that too before conducting search of the vehicle. Similarly, PW-16 IO Yudhbir Singh has also admitted that no fresh option was given to the accused at the time of conducting their personal search. Case of the prosecution is that there were only two occupants in the car, however, PW-1 Suneel Kumar has categorically stated in his examination-in-chief that there were three occupants and third one ran away from the spot. Proceedings, as per prosecution case, were carried out in the rain shelter. Site plan is Ext. PW-16/A PW-16 Yudhbir Singh has admitted in his cross-examination that rain shelter has not been shown in the site plan. There was no light also as per statement of PW-2 Roop Singh. PW-2 did not remember how long Tilak Raj and Suneel Kumar remained on the spot. He could not tell even by rough estimate whether they remained at the spot for 10, 20 or 30 minutes. Similarly, PW-16 Yudhbir Singh initially stated in his cross-examination that Suneel and Tilak Raj did not remain present with him throughout the proceedings. Later on stated that they were present with him during the course of entire proceedings. Police party spent 6-7 hours for carrying out the proceedings. Surprisingly, PW-2 also says that Rukka was sent before commencement of the proceedings. Rukka was to be sent after completing all the formalities at the spot, on the basis of which FIR was registered. 25. Case property has been produced while recording statement of PW-2. Who has produced the case property in the Court is not stated. We have gone through the extract of Malkhana Register Ext. PW-7/A. There is no entry when FSL report was received back. There is no entry when the case property was dispatched from the Malkhana, in the Malkhana Register, for the purpose of production of the same before the Court. There is no entry when the case property was returned in the Malkhana. There is no DDR at the time of producing the case property before the Court and its re-deposit in the Malkhana. There is no entry when the case property was returned in the Malkhana. There is no DDR at the time of producing the case property before the Court and its re-deposit in the Malkhana. Thus, it casts doubt whether the case property is the same which was seized from the accused, sent to FSL for examination and produced before the Court or it was case property of some other case. There is no reference whether NCB form was deposited alongwith case property in the Malkhana. In the cases under NDPS Act, question how and where samples were stored and when they have been dispatched or received in Malkhana, is a matter of great importance. 26. Their Lordships of the Hon'ble Supreme Court in State of Delhi Vs. Ram Avtar @ Rama, AIR 2011 SC 2699 have held that merely asking accused whether he wished to be searched by a Magistrate or a Gazetted Officer without informing that he enjoys a right in this behalf, is no compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act. Their Lordships have held as under: "9. One of the earliest and significant judgments of this Court, on the issue before us is the case of State of Punjab Vs. Balbir Singh, AIR 1994 SC 1872 where the Court considered an important question i.e., whether failure by the empowered or authorized officer to comply with the conditions laid down in Section 50 of the Act while conducting the search, affects the prosecution case. In para 16 of the said judgment, after referring to the words "if the person to be searched so desires", the Court came to the conclusion that a valuable right has been given to the person, to be searched in the presence of the Gazetted Officer or Magistrate if he so desires. Such a search would impart much more authenticity and creditworthiness to the proceedings, while equally providing an important safeguard to the accused. It was also held that to afford this opportunity to the person to be searched, such person must be fully aware of his right under Section 50 of the Act and that can be achieved only by the authorized officer explicitly informing him of the same. The statutory language is clear, and the provisions implicitly make it obligatory on the authorized officer to inform the person to be searched of this right. The statutory language is clear, and the provisions implicitly make it obligatory on the authorized officer to inform the person to be searched of this right. Recording its conclusion in para 25 of the judgment, the Court clearly held that non-compliance with Section 50 of the Act, which is mandatory, would affect the prosecution case and vitiate the trial. It also noticed that after being so informed, whether such person opted for exercising his right or not would be a question of fact, which obviously is to be determined on the facts of each case. 10. This view was followed by another Bench of this Court in the case of Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala, AIR 1995 SC 244 , wherein the Court stated that the searching officer was obliged to inform the person to be searched of his rights. Further, the contraband seized in an illegal manner could hardly be relied on, to the advantage of the prosecution. Unlawful possession of the contraband is the sine qua non for conviction under the NDPS Act, and that factor has to be established beyond any reasonable doubt. The Court further indicated that articles recovered may be used for other purposes, but cannot be made a ground for a valid conviction under this Act. 11. In the case of Saiyad Mohd. Saiyad Umar Saiyad v. State of Gujarat, [(1995) 3 SCC 510], the Court followed the principles stated in Balbir Singh's case (supra) and also clarified that the prosecution must prove that the accused was not only made aware of his right but also that the accused did not choose to be searched before a Gazetted Officer or a Magistrate. 12. Then the matter was examined by a Constitution Bench of this Court, in the case of State of Punjab Vs. Baldev Singh, etc. etc., AIR 1999 SC 2378 , where the Court, after detailed discussion on various cases, including the cases referred by us above, recorded its conclusion in para 57 of the judgment. The relevant portions of this conclusion are as under: "57. Baldev Singh, etc. etc., AIR 1999 SC 2378 , where the Court, after detailed discussion on various cases, including the cases referred by us above, recorded its conclusion in para 57 of the judgment. The relevant portions of this conclusion are as under: "57. On the basis of the reasoning and discussion above, the following conclusions arise: (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. XXX XXX XXX (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the official concerned so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. XXX XXX XXX (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." 13. Still in the case of In the Matter of: Ahmed Vs. State of Gujarat, AIR 2000 SC 2790 : (2000) 3 CTC 750 : (2000) 71 ECC 459 : (2000) 92 ECR 241 : (2000) 9 JT 416 : (2000) 6 SCALE 94 : (2000) 7 SCC 477 : (2000) 2 SCR 642 Supp : (2000) 2 UJ 1349 : (2000) AIRSCW 2969 : (2000) 5 Supreme 731 , a Bench of this Court followed the above cases including Baldev Singh's case (supra) and held that even where search is made by empowered officer who may be a Gazetted Officer, it remains obligatory for the prosecution to inform the person to be searched about his right to be taken to the nearest Gazetted Officer or Magistrate before search. In this case, the Court also noticed at sub-para (e) at page 482 of the judgment that the provisions of Section 50 of the Act, which afford minimum safeguard to the accused, provide that when a search is about to be made of a person under Section 41 or Section 42 or Section 43 of the Act, and if the person so requires, then the said person has to be taken to the nearest Gazetted Officer of any department mentioned in Section 42 of the Act or to the nearest Magistrate. 14. 14. In the case of K. Mohanan v. State of Kerala, [ (2010) 10 SCC 222 ] another Bench of this Court while following Baldev Singh's case (supra) stated in unambiguous terms that merely asking the accused whether he wished to be searched before a 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 Act. 15. We may also notice here that some precedents hold that though a right of the person to be searched existed under Section 50 of the Act, these provisions are capable of substantial compliance and compliance in absolute terms is not a requirement under law. Reference in this regard can be made to Joseph Fernandez Vs. State of Goa, AIR 2000 SC 3502 , Prabha Shankar Dubey Vs. State of Madhya Pradesh, (2004) 98 CLT 4, Manohar Lal Vs. State of Rajasthan, (1996) 1 AD 741, Karnail Singh Vs. State of Haryana, (2009) 108 CLT 681. 16. In the case of Prabha Shankar Dubey (supra), this Court while referring to Baldev Singh's case (supra) took the view that Section 50 of the Act in reality provides additional safeguards which are not elsewhere provided by the statute. As the stress is on the adoption of reasonable, fair and just procedure, no specific words are necessary to be used to convey the existence of this right. The notice served, in that case, upon the person to be searched was as follows: 'By way of this notice you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any gazetted officer or by a Magistrate?' Keeping the afore-referred language in mind, the Court applied the principle of substantial compliance, and held that the plea of non- compliance with the requirements of Section 50 of the Act was without merit on the facts of that case. 17. The Court held as under: "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 case. 17. The Court held as under: "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 case. 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. 13. Above being the position, we find no substance in the plea that there was non-compliance with the requirements of Section 50 of the Act." 18. Similarly, in Manohar Lal's case (supra) the option provided to the accused, not to go to a Magistrate if so desired, was considered to imply requirement of mere substantial compliance; and that strict compliance was not necessary. 19. In the case of Union of India (UOI) Vs. Satrohan, (2008) 8 JT 148 though the Court was not directly concerned with the interpretation of the provisions of Section 50 of the Act, the Court held that Section 42(2) of the Act was mandatory. It also held that search under Section 41(1) of the Act would not attract compliance to the provisions of Section 50 of the Act. To that extent this judgment was taking a view different from that taken by the equi-Bench in Ahmed's case (supra). This question to some extent has been dealt with by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, AIR 2011 SC 77 (hereinafter referred to as 'Vijaysinh Chandubha Jadeja'). As this question does not arise for consideration before us in the present case, we do not consider it necessary to deliberate on this aspect in any further detail. 20. In the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2005) 12 SCC 574 , a three Judge Bench of this Court had taken the view that the accused must be informed of his right to be searched in presence of a Magistrate and/or a Gazetted Officer, but in light of some of the judgments we have mentioned above, a reference to the larger bench was made, resulting. Accordingly, a Constitution Bench was constituted and in the case of Vijaysinh Chandubha Jadeja (supra) of this Court, referring to the language of Section 50 of the Act, and after discussing the above-mentioned judgments of this Court, took the view that there was a right given to the person to be searched, which he may exercise at his option. The Bench further held that substantial compliance is not applicable to Section 50 of the Act as its requirements were imperative. The Court, however, refrained from specifically deciding whether the provisions were directory or mandatory. 21. It will be useful to refer the relevant parts of the Constitution Bench in Vijaysinh Chandubha Jadeja (supra). In para 23, the Court said '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'. After further referring to the conclusions arrived at by the Constitution Bench in Baldev Singh's case (supra) (which have been referred by us in para 9 of this judgment) and reiterating the same the Constitution Bench in Vijaysinh Chandubha Jadeja (supra) this case concluded as under: "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 Dubey 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 case. 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." 22. An analysis of the above judgments clearly show that the scope of the provisions of Section 50 of the Act are no more res integra and stand concluded by the above judgments particularly the Constitution Bench judgments of this Court in the cases of Baldev Singh (supra) and Vijaysinh Chandubha Jadeja (supra). 23. In the present case, we are concerned with the provisions of Section 50 of the Act as it was, prior to amendments made by Amending Act 9 of 2001 w.e.f. 2.10.2001. 23. In the present case, we are concerned with the provisions of Section 50 of the Act as it was, prior to amendments made by Amending Act 9 of 2001 w.e.f. 2.10.2001. In terms of the provisions, in force at the relevant time, the petitioner 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 an option, in accordance with the provisions of the Act, would render the recovery of the contraband or illicit substance illegal. Satisfaction of the requirements in terms of Section 50 of the Act is sine qua non prior to prosecution for possession of an unlawful narcotic substance. 24. In fact, the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), in para 25, has even taken a view that after the amendment to Section 50 of the Act and the insertion of sub-section 5, the mandate of Section 50(2) of the Act has not been nullified, and the obligation upon the searching officer to inform the person searched of his rights still remains. In other words, offering the option to take the person to be searched before a Gazetted Officer or a Magistrate as contemplated under the provisions of this Act, should be unambiguous and definite and should inform the suspect of his statutory safeguards. 25. Having stated the principles of law applicable to such cases, now we revert back to the facts of the case at hand. There is no dispute that the concerned officer had prior intimation, that the accused was carrying smack, and the same could be recovered if a raid was conducted. It is also undisputed that the police party consisting of ASI - Dasrath Singh, Head Constable-Narsingh, Constable - Manoj Kumar and lady constable-Nirmla had gone in a Government vehicle to conduct the raid. The vehicle was parked and the accused, who was coming on a scooter, had been stopped. He was informed of and a notice in writing was given to him of, the suspicions of the police, that he was carrying smack. They wanted to search him and, therefore, informed him of the option available to him in terms of Section 50 of the Act. He was informed of and a notice in writing was given to him of, the suspicions of the police, that he was carrying smack. They wanted to search him and, therefore, informed him of the option available to him in terms of Section 50 of the Act. The option was given to the accused and has been proved as Ex. PW-6/A, which is in vernacular. The High Court in the judgment under appeal has referred to it and we would prefer to reproduce the same, which reads as under : "Musami Ram Avtar urf Rama S/o late Sh. Mangat Ram R/o 71/144, Prem Nagar, Choti Subzi Mandi, Janakpuri, Delhi, apko is notice ke tehat suchit kiya jata hai ki hamare pas itla hai ki apko kabje me smack hai aur apki talashi amal mein laye jati hai. Agar ap chahen to apki talashi ke liye kisi Gazetted officer ya Magistrate ka probandh kiya ja sakta hai." 26. The High Court while relying upon the judgment of this Court in the case of Baldev Singh (supra) and rejecting the theory of substantial compliance, which had been suggested in the case of Joseph Fernandez (supra), found that the intimation did not satisfy the provisions of Section 50 of the Act. The Court reasoned that the expression 'duly' used in Section 50 of the Act connotes not 'substantial' but 'exact and definite compliance'. Vide Ex. PW-6/A, the appellant was informed that a Gazetted Officer or a Magistrate could be arranged for taking his search, if he so required. This intimation could not be treated as communicating to the appellant that he had a right under law, to be searched before the said authorities. As the recovery itself was illegal, the conviction and sentence has to be set aside. 27. It is a settled canon of criminal jurisprudence that when a safeguard or a right is provided, favouring the accused, compliance thereto should be strictly construed. As already held by the Constitution Bench in the case of Vijaysinh Chandubha Jadeja (supra), the theory of 'substantial compliance' would not be applicable to such situations, particularly where the punishment provided is very harsh and is likely to cause serious prejudices against the suspect. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The safeguard cannot be treated as a formality, but it must be construed in its proper perspective, compliance thereof must be ensured. The law has provided a right to the accused, and makes it obligatory upon the officer concerned to make the suspect aware of such right. The officer had prior information of the raid; thus, he was expected to be prepared for carrying out his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial." 27. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan Vs. Parmanand and Another, AIR 2014 SC 1384 , have held that there is a need for individual communication to each accused and individual consent by each accused under Section 50 of the Act. Their lordships have also held that Section 50 does not provide for third option. Their lordships have also held that if a bag carried by the accused is searched and his personal search is also started, Section 50 would be applicable. Their lordships have held as under: "15. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No. 1 Parmanand's bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. His personal search was also carried out. Personal search of respondent No. 2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 16. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses have stated that the respondents were informed that they have a right to be searched before a nearest gazetted officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary to inform the accused person, in writing, of his right under Section 50(1) of the NDPS Act. His right can be orally communicated to him. But, in this case, there was no individual communication of right. A common notice was given on which only respondent No. 2 - Surajmal is stated to have signed for himself and for respondent No. 1 - Parmanand. Respondent No. 1 Parmanand did not sign. 19. We also notice that PW-10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before a nearest gazetted officer or before PW-5 J.S. Negi, the Superintendent, who was a part of the raiding party. It is the prosecution case that the respondents informed the officers that they would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. PW-5 J.S. Negi cannot be called an independent officer. We are not expressing any opinion on the question whether if the respondents had voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi, the search would have been vitiated or not. But PW-10 SI Qureshi could not have given a third option to the respondents when Section 50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted by PW-10 SI Qureshi is vitiated. 20. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. The respondents have rightly been acquitted by the High Court. It is not possible to hold that the High Court's view is perverse. The appeal is, therefore, dismissed." Cr. Appeal No. 326/2010 28. Prosecution has failed to prove that contraband was recovered from the conscious and exclusive possession of the accused-respondent. He was merely a driver. Accordingly the present appeal fails and is accordingly dismissed. Bail bonds of the accused-respondent namely Rajesh Kumar are discharged. Cr. Appeal No. 10/2010 29. Cr. Appeal No. 10/2010 is allowed. Judgment of conviction dated 31.12.2009 by the learned Special Judge, Fast Track Court, Chamba, District Chamba, in Sessions Trial No. 17/2009, whereby appellant-accused Tarsem Lal has been convicted and sentenced, is set aside. Accused-Tarsem Lal is acquitted of the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985. He be released forthwith, if not required by the police in any other case. Fine amount, if any deposited by the accused, be also refunded to him. Registry is directed to prepare the release warrant of the accused-Tarsem Lal and send the same immediately to the concerned Superintendent of Jail. Pending applications, in both the appeals, if any, are disposed of.