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Himachal Pradesh High Court · body

2016 DIGILAW 434 (HP)

Nanak Chand v. State of Himachal Pradesh

2016-04-07

RAJIV SHARMA, SURESHWAR THAKUR

body2016
JUDGMENT : Rajiv Sharma, J. 1. Present appeal has been filed against Judgment dated 5.1.2011 rendered by learned Additional Sessions Judge, Mandi, HP camp at Karsog in Sessions Trial No. 7 of 2010, whereby appellant-accused (hereinafter referred to as accused for convenience sake), who was charged with and tried for offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as Act for convenience sake), has been convicted and sentenced to undergo rigorous imprisonment for twelve years and to pay a fine of Rs. 1,20,000/- and, in default of payment of fine, to further undergo simple imprisonment, for two years. 2. Prosecution case, in a nutshell, is that PW-11 SI Amar Singh, PW-9, Constable Pitamber, PW-2 Constable Jitender, HC Jagdish, LC Neelam and HHC Bodh Raj were present at Dhurmu on 29.11.2009 at 5.15 PM. Accused came from Kelodhar side carrying a backpack (Ex. P2) on his back. He was stopped. A truck bearing registration No. HR-37-A 5120 came from Kotlu, which was signalled to stop. Prem Singh was driving the said truck. Prem Singh was associated as a witness. Accused disclosed his name as Nanak Chand. Accused appeared to be frightened. PW-11 SI Amar Singh told the accused that he was suspecting possession of some narcotic and accused was having a right to be searched before a competent gazetted officer or a Magistrate. Accused gave his consent to be searched by the police. Memo Ext. PE was prepared. Witnesses Prem Singh and Jatinder gave their search to the accused. Backpack was checked. It was found containing one polythene bag (Ext. P3), which was containing another polythene bag (Ext. P4). Polythene bag was opened and it was found containing black coloured substance in the form of large and small spheres and small sticks. It was found to be charas. Charas was weighed. It weighed 9 kg. Charas was put back in the same polythene bag from which it was recovered. The polythene bag was put in another bag and this polythene bag was put in the backpack. Backpack was sealed in a parcel with 8 seals of impression ‘H’. Seal impression was taken separately on a piece of cloth and one such impression is Ext. PD. NCB-I form (Ext. PR) was filled in triplicate. Seal impression was also taken on this form. Seal was handed over to Prem Chand after use. Seizure memo Ext. Backpack was sealed in a parcel with 8 seals of impression ‘H’. Seal impression was taken separately on a piece of cloth and one such impression is Ext. PD. NCB-I form (Ext. PR) was filled in triplicate. Seal impression was also taken on this form. Seal was handed over to Prem Chand after use. Seizure memo Ext. PE and Ext. PF were prepared. Rukka Ext. PS was prepared and sent to Police Station through constable Pitamber. FIR Ext. PK was registered in the Police Station. Case file was sent to the spot through Constable Pitamber. Investigation was completed. Challan was put up in the Court after completing all codal formalities. 3. Prosecution examined as many as eleven witnesses to prove its case against the accused. Accused was also examined under Section 313 Cr. P.C. He denied the case of the prosecution. Accused was convicted and sentenced as mentioned above. Hence, this appeal. 4. Mr. B.R. Sharma, Advocate, has vehemently argued that the prosecution has failed to prove its case against the accused. 5. Mr. Ramesh Thakur, Deputy Advocate General has supported the judgment of conviction dated 5.1.2011. 6. We have heard the learned counsel for the parties and also gone through the record carefully. 7. PW-1 Prem Singh testified that on 29.11.2009, he was driving truck No. HR-37-A-5120 from Rampur to Churag. He proceeded from Rampur at about 1.30 or 2 PM. He reached Dhurmu near Kotlu at 3 PM. Police vehicle was found parked there. 4/5 Policemen were present there. One motor cycle was also parked there. He was signalled by the police to stop the truck. He stopped the truck. He showed the documents to the police. Nobody was present there except policemen. He was declared hostile and cross-examined by the learned Public Prosecutor. He denied the suggestion that accused was found coming from Kelodhar side carrying bag on his back. He denied that accused was questioned by the police in his presence and he disclosed his name to be Nanak Chand. He further denied the suggestion that police suspected that accused Nank Chand was carrying contraband. He also denied the suggestion that the accused was apprised about his legal right to be searched in the presence of Magistrate or Gazetted Officer by SHO Amar Chand in his presence and accused consented to be searched by the police on the spot. He further denied the suggestion that police suspected that accused Nank Chand was carrying contraband. He also denied the suggestion that the accused was apprised about his legal right to be searched in the presence of Magistrate or Gazetted Officer by SHO Amar Chand in his presence and accused consented to be searched by the police on the spot. He further denied the suggestion that consent memo Mark A was prepared in this connection by SHO Amar Chand which was signed by accused, him and constable Jatinder. He admitted his signatures on consent memo Mark A. However, he denied the suggestion that SHO Amar Chand gave his personal search to the accused in his presence. He further denied that on checking the bag, it was found containing polythene carry bag having inscription ‘Mayur Shopping Bag’. He also denied the suggestion that on opening of this polythene bag, it was found containing another polythene bag in which black coloured substance had been kept. He admitted his signatures on Mark C. He denied that the Charas was weighed by SHO Amar Chand and it was found to be 9 kg. He denied the suggestion that recovered charas was put back in the same polythene carry bag and this polythene carry bag containing charas was put back in another polythene bag and then this polythene bag containing other polythene bag and recovered charas was also put back in the bag. He denied the suggestion that aforesaid articles were sealed in separate cloth parcel. He also denied that eight seal impressions of ‘H’ were affixed on this parcel. He denied that search and seizure memo mark E was prepared on the spot. He also denied that search and seizure memo Ext. E was prepared on the spot by SHO Amar Chand. He admitted his signatures on mark D. He admitted his signatures on sample of seal ‘H’ and mark F. He denied that NCB-1 form in triplicate had been filled on the spot by SHO Amar Chand. His signatures were obtained on various papers by SHO Amar Chand by stating that documents of the truck had been checked. He denied portion A to A, B to B, C to C and D to D of his statement mark H. 8. PW-2 Constable Jatinder Kumar deposed that at about 5 PM, they stopped at Dhurmu near Kotlu. His signatures were obtained on various papers by SHO Amar Chand by stating that documents of the truck had been checked. He denied portion A to A, B to B, C to C and D to D of his statement mark H. 8. PW-2 Constable Jatinder Kumar deposed that at about 5 PM, they stopped at Dhurmu near Kotlu. One person came from Kelodhar side carrying bag on his back. He was going towards Kotlu. In the meantime, a truck bearing No. HR- 37A-5120 came from Kotlu side. The truck in question was being driven by Prem Singh. SHO Amar Chand signalled the truck to stop. The truck was stopped by Prem Singh. Prem Singh was asked to alight from the truck. SHO Amar Chand asked the accused about the contents of the bag. Amar Chand told the accused that he suspected that contraband was being carried in the bag. Amar Chand asked the accused whether he wanted to be searched by a gazetted officer or a Magistrate. Accused consented to be searched by the police. Consent memo Ext. PA was prepared, which was signed by him, Prem Singh and the accused Bag was searched. Charas was recovered in the shape of balls. He deposed that search and sealing proceedings were completed at the spot. Search and seizure memo Ext. PE was prepared at the spot by Amar Chand, which was signed by him, Prem Singh and accused. Case property was produced before the Court while examining PW-2 by the learned Public Prosecutor. In his cross- examination, he deposed that they had proceeded from Police Station, Karsog at about 1.30 or 2 PM and reached back at Police Station at about 11/12 midnight. All of them had returned back to the police station from the spot together. They had stayed at the spot for about 3 hours. No residential house was situated near the place of occurrence. Proceedings were conducted at the spot with the help of torch/search light. He did not remember how many vehicles had passed through the road during the course of conducting proceedings. Volunteered that 3-4 vehicles passed during this period. He also admitted that there was flow of traffic on the road. He did not remember who had scribed the search and seizure memo. 9. He did not remember how many vehicles had passed through the road during the course of conducting proceedings. Volunteered that 3-4 vehicles passed during this period. He also admitted that there was flow of traffic on the road. He did not remember who had scribed the search and seizure memo. 9. PW-4 HHC Jiwan Lal deposed that on 30.11.2009, MHC Gyan Chand handed over one sealed bulk parcel containing 9 kg of charas bearing eight seal impressions of ‘H’, sample of seal ‘H’, NCB-1 form in triplicate and docket with the direction to deposit the same at FSL Junga. He took the same to FSL Junga vide RC No. 146/209 and deposited the same at FSL Junga on the same day in intact position. 10. PW-6 Tilak Singh deposed that Rukka was received by him at Police Station Karsog on 29.11.2009 . FIR Ext. PK was registered. 11. PW-9 Constable Pitamber Lal deposed the manner in which accused was apprehended. Search, seizure and sealing proceedings were completed at the spot. He handed over Rukka to MHC, who recorded FIR and handed over the file to him. In his cross-examination, he has admitted that Sanarli was located at a distance of about 3 kms from Police Station. They started from Police Station at about 1.30 PM. They reached the spot at about 5.15 PM. He remained on the spot for about 1-2 hours. Few vehicles plied on the road where accused was apprehended. According to him, consent memo Ext. PA and Ext. PB were written by HC Jagdish. He did not remember who had filled in NCB form. He reached the Police Station at 8.15 PM. 12. PW-10 Gyan Chand deposed that Pitamber came to the police station with the Rukka on 29.11.2009, on the basis of which FIR Ext. PK was registered. Inspector Amar Chand handed over one parcel which was stated to be containing 9 kg of charas. It was sealed with 8 seal impressions of ‘H’. Amar Chand also handed over NCB form, sample seal ‘H’ on 29.11.2009 at 9.05 PM. He deposited these in Malkhana and made entry in the Malkhana register. Copy of which is Ext. PP. He took out all these articles from Malkhana on 30.11.2009 and handed over to Jiwan Lal with the direction to carry it to FSL Junga vide RC No. 46/06. 13. He deposited these in Malkhana and made entry in the Malkhana register. Copy of which is Ext. PP. He took out all these articles from Malkhana on 30.11.2009 and handed over to Jiwan Lal with the direction to carry it to FSL Junga vide RC No. 46/06. 13. PW-11 SHO Amar Singh also deposed the manner in which accused was apprehended, search, seizure and sealing proceedings were completed at the spot. He categorically admitted that Ext. PA, PB, PC and PE were not in his handwriting. These were written by HC Jagdish as per his dictation. NCB form was in his handwriting. He also admitted that these documents did not bear signatures of Jagdish. He admitted that he only attested the documents. He also admitted that he has not referred in challan that these documents were written by HC Jagdish. He further admitted that Jagdish was not associated by him as witness. They reached the Police Station at about 5.30 PM. 14. It has come in the statement of PW-2 Jatinder Kumar that there was flow of traffic on the road. He also deposed that 3-4 vehicles passed on the road during this period. It was not a secluded place. Police should have associated the owners/drivers of the vehicles as independent witnesses to inspire confidence in the search, seizure and sampling proceedings. PW-1 Prem Singh has not supported the case of the prosecution. He has denied that the accused was found coming from Kelodhar and was carrying any backpack on his back. He denied that accused was apprised of his right to be searched in the presence of a Magistrate or a gazetted officer, by Amar Chand. He denied that on checking of bag, contraband /charas was recovered from it. He also denied the sealing proceedings on the spot. Though he has admitted his signatures on memo mark D, Mark G and parcel mark 1. PW-1 Perm Singh has denied portions A to A, B to B, C to C and D to D of his statement mark H. PW-2 Constable Jatinder Kumar deposed that they reached back at the Police Station Karsog at 11/12 midnight and all other returned back to Police Station from the spot together. PW-10 Gyan Chand deposed that Amar Chand handed over NCB form, sample seal ‘H’ on 29.11.2009 at 9.05 pm. PW-10 Gyan Chand deposed that Amar Chand handed over NCB form, sample seal ‘H’ on 29.11.2009 at 9.05 pm. PW-11 Amar Singh deposed that they reached in the Police Station at about 5.30 PM. There is inherent contradiction in the statements of PW-2 Jatinder Kumar, PW-11 Amar Singh about the arrival at Police Station. PW-2 Jatinder Kumar has deposed that they came back together to Police Station at about 11/12 mid night. PW- 11 Amar Singh says that they came back to Police Station at 5.30 PM. PW-10 Gyan Chand stated that Amar Chand handed over NCB form and sample seal H on 29.11.2009 at 9.05 PM. PW-2 Jatinder Kumar deposed in his examination-in-chief that the consent memo Ext. PA was prepared by Amar Chand and was signed by him, Prem Singh and accused. However, PW-11 Amar Singh deposed that Ext. PA, PB, PC and PE were not in his handwriting. PW-9 Pitamber also deposed that consent memo Ext. PA and PB were written by HC Jagdish. PW-11 Amar Singh in his cross-examination, has admitted that these exhibits were written by HC Jagdish as per his dictation. He has also admitted that he has not referred in the challan that these documents were written by HC Jagdish and Jagdish Chand was not associated by him as witness. In case these documents were scribed by Jagdish, he was a material witness to prove Exts. PA, PB, PC and PE. 15. Case property was produced while recording statement of PW-2 Jatinder Kumar, by the learned Public Prosecutor. Who has brought the case property from Malkhana to the Court has not been examined. Entry in the Malkhana register to the effect that who has taken the property to the Court, is necessary as per Punjab Police Rules, 1934. 16. In Punjab Police Rules, also applicable to the State of Himachal Pradesh, Malkhana register is assigned serial number-19. It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. These details are very material and every deposit made in the Malkhana/Store Room is to be recorded and also at the time when it is re-deposited. 17. It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. These details are very material and every deposit made in the Malkhana/Store Room is to be recorded and also at the time when it is re-deposited. 17. It is necessary that as and when case property is taken out from Malkhana, necessary entry is required to be made in the Malkhana Register and also at the time when case property is redeposited in the Malkhana. Case property in NDPS cases is required to be kept in safe custody from the date of seizure till its production in the Court. It is also necessary that when case property is taken out from Malkhana, DDR is made and also at the time when case property is redeposited in the Malkhana. Thus, it casts doubt whether it is the same case property which was recovered from the accused and sent to FSL or it was case property of some other case. The prosecution has failed to prove case against the accused. 18. Sub-rule (2) Rule 22.18 of Punjab Police Rules, reads as under: (2) All case property and unclaimed property, other than cattle, of which the police have taken possession shall, if capable of being so treated, be kept in the store-room. Otherwise the officer in charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register. The officer in charge of the police station shall examine Government and other property in the store-room at least twice a month and shall make an entry in the station diary on the Money following the examination to the effect that he has done so. 19. Rule 27.18 of Punjab Police Rules, reads as under: 27.18. The officer in charge of the police station shall examine Government and other property in the store-room at least twice a month and shall make an entry in the station diary on the Money following the examination to the effect that he has done so. 19. Rule 27.18 of Punjab Police Rules, reads as under: 27.18. Safe custody of property:- (1) Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the storeroom of the head of the prosecuting agency, or the police station. See Rule 22.18. When required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector and an entry made in the register of issue from and return to the prosecuting agency’s store-room, which register shall be maintained in Form 27.18(1). Animals sent in connection with cases shall be kept in the pound attached to the police station at the place to which they have been sent, and the cost of their keep shall be recovered from the District Magistrate in accordance with Rule 25.48. (2) In all cases in which the property consists of bullion, cash, negotiable securities, currency notes or jewellery, exceeding in value Rs. 500 the Superintendent shall obtain the permission of the District Magistrate, Additional District Magistrate or Sub-Divisional Officer to make it over to the Treasury Officer for safe custody in the treasury. (3) All cash, jewellery and other valuable property of small bulk, which is not required under sub-rule (2) above to be sent to the treasury, shall be kept in a locked strong box in the store-room. Each court orderly shall be provided with a strong lock-up box in which he shall keep all case property while it is in his custody in the court to which he is attached. Case property shall invariably be kept lockedup in such box except when it is actually produced as an exhibit in the course of proceedings. After being so produced it shall be immediately replaced in the lock-up box. Boxes shall be provided from funds at the disposal of the District Magistrate. Case property shall invariably be kept lockedup in such box except when it is actually produced as an exhibit in the course of proceedings. After being so produced it shall be immediately replaced in the lock-up box. Boxes shall be provided from funds at the disposal of the District Magistrate. (4) Property taken out of the main store-room for production in court shall be signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. (5) Every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. Animals brought from the pound shall be re-pounded under the supervision of a head constable. 20. Thus, it is evident from rule 22.18 that the case property is required to be kept in store room and each article is to be entered in store room, registered and labelled and label shall contain a reference to the entry in the store-room register and a description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles is required to be given on the label and in the store-room register. Similarly, it is provided in Rule 27.18 that Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. Similarly, it is provided in Rule 27.18 that Weapons, articles and property sent in connection with cases shall on receipt be entered in register No. 1 and shall (excluding livestock) be properly stored in the store-room of the head of the prosecuting agency, or the police station. The case property when required for production in court such articles shall, at headquarters, be taken out in the presence and under the personal order of an officer of rank not less than prosecuting sub-inspector (now APP/PP) and an entry made in the register of issue from and return to the prosecuting agency’s store-room, which register shall be maintained in Form 27.18(1). Property taken out of the main store-room for production in court is required to be signed for by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal shall initial this entry. Such officer similarly, after personal check, is required to initial the entry of return of the property to the main store-room on the closing of the courts. It is further provided in this Rule that every day, when the courts close, an officer of the prosecuting branch of rank not less that of sub-inspector shall personally see that the articles produced in court are returned to the store-room, restored to their proper places in the shelves, cup-boards or strong box and registered as required by sub-rule (4) above. The opening of the storeroom in the morning and its closing in the evening shall invariably be in the presence of the police officials named in this rule. In case property is required to be committed to the higher Court, then under Rule 27.19, the parcel shall be sealed with the seal of the court and made over to the head of the police prosecuting agency, who shall produce it with unbroken seals before the superior court, or, if so ordered by competent authority, shall make it over to some other officer authorized so to produce it. 21. In Punjab Police Rules, also applicable to the State of Himachal Pradesh, Malkhana register is assigned serial number-19. It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. 21. In Punjab Police Rules, also applicable to the State of Himachal Pradesh, Malkhana register is assigned serial number-19. It is in a tabular form. There are different columns like who has deposited the case property and when it was taken out and deposited back. These details are very material and every deposit made in the Malkhana/Store Room is to be recorded and also at the time when it is re-deposited. 22. In this case, there is nothing on record to suggest that these Rules were followed while producing case property in the Court and on returning the same. These Rules have been framed to ensure that case property from its initial stage of seizure till production in the Court remains safe/intact and is restored to store room in the presence of senior police officer. Property taken out of the main store-room for production in court is required to be signed by the court orderly concerned in register No. 2 and the prosecuting officer authorizing the removal is required to initial this entry. Such officer shall similarly, after personal check, initial the entry of return of the property to the main store-room on the closing of the courts. We have already noticed that as per statement of PW-2 Jatinder Kumar they have come together to the Police Station at 11/12 midnight and in that eventuality, case property could not be deposited with the police at 9.05 pm. 23. In the consent memo Ext. PA, accused was apprised of his legal right that his personal search and search of bag could be conducted before a gazetted officer or a Magistrate. Accused has given in writing that ^^esa lqphr gqvk rFkk vius osx dh ryklh vki lMdk ij gkthj iqyhl dks nsus pkgkrk gqWa ukud pUnA** He has given in writing that his bag could be searched by the police. He has not consented for his personal search by the police. Though the personal search was not necessary since charas was recovered from the bag of the accused but despite that police carried out personal search of accused and of the bag as well. We have already noticed herein above that accused had not consented for his personal search before the police. Once the accused has not given his consent, written or oral, to be personally searched by the police, he should have been taken to nearest Magistrate or a gazetted officer. We have already noticed herein above that accused had not consented for his personal search before the police. Once the accused has not given his consent, written or oral, to be personally searched by the police, he should have been taken to nearest Magistrate or a gazetted officer. Thus, the police have not complied with Section 50 of the Act in its letter and spirit. Section 50 is mandatory. 24. Their Lordships of the Hon'ble Supreme Court in State of Delhi vs. Ram Avtar, (2011) 12 SCC 207 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 & 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, (1994) 3 SCC 299 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. 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. 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, (1994) 6 SCC 569, 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 vs. 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, (1999) 6 SCC 172 , 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. 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 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. (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 subsection (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 Ahmed vs. State of Gujarat, (2000) 7 SCC 477 , 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. In the case of K. Mohanan vs. 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, (2000) 1 SCC 707 , Prabha Shankar Dubey vs. State of Madhya Pradesh, (2004) 2 SCC 56 , Krishna Kanwar vs. State of Rajasthan, (2004) 2 SCC 608 , Manohar Lal vs. State of Rajasthan, (1996) 11 SCC 391 , Karnail Singh vs. State of Haryana, (2009) 8 SCC 539 . 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. 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. 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 vs. Satrohan, (2008) 8 SCC 313 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. 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, (2011) 1 SCC 609 (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, (2007) 1 SCC 433 , 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. 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. 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. 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. 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. 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 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. 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.” 25. Their Lordships of the Hon'ble Supreme Court in State of Rajasthan vs. Parmanand, (2014) 5 SCC 345 , 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. 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. 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. 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. 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.” 26. In view of the discussion and analysis made herein above, the appeal is allowed. Judgment dated 5.1.2011 rendered by learned Additional Sessions Judge, Mandi, HP camp at Karsog in Sessions Trial No. 7 of 2010 is set aside. Accused is acquitted of the offence under Section 20 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Fine amount, if any deposited by him in this case, be refunded to him. Accused is ordered to be released, if not required in any other case. Registry is directed to prepare and send the release warrant of the accused to the Superintendent of Jail concerned, forthwith.