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CASE NO.:

Appeal (crl.) 541 of 2005

PETITIONER:

State of Rajasthan

RESPONDENT:

Ram Chandra

DATE OF JUDGMENT: 12/04/2005

BENCH:

ARIJIT PASAYAT & S.H. KAPADIA)

JUDGMENT:

J U D G M E N T

(Arising out of SLP (Crl.)No. 3316/2003)

ARIJIT PASAYAT, J.

Leave granted.

The State of Rajasthan is in appeal against the judgment of

learned Single Judge, Rajasthan High Court, Jaipur Bench, Jaipur

holding that there was non-compliance with the mandatory requirements

of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985

(in short the 'Act'). The said conclusion was arrived at on the ground

that though the accused respondent had been given the option of being

searched in the presence of Shri Satyender Singh (PW-3), the Deputy

Superintendent of Police, he was in essence a member of the raiding

party and, therefore, the search in his presence cannot at all be said

to be in consonance with Section 50 of the Act, though he was a

Gazetted Officer.

Background facts in a nutshell are as under:

On 8.9.1995 Prem Shaker Meena (PW-2), SHO Police Station,

Kotwali, Baran having received information about illicit trafficking in

narcotic substances, rushed to the place pointed out by the informant

and apprehended the accused respondent. Satyendra Singh, Dy. S.P. (PW-

3) also reached there. Subsequently, being of the suspicion that

accused respondent was in possession of contraband, the SHO informed

him of his right to have his search conducted either in presence of

Shri Satyendra Singh, Dy. S.P. (PW-3) who was a Gazetted Officer and

happened to be present there or in the presence of any magistrate. The

accused consented for his search to be conducted in the presence of the

Dy. S.P. (PW-3). On being searched, 570 grams of opium was recovered

from his possession in the presence of Ramesh Chand (PW-5) and Rajendra

Kumar (PW-6). Out of the recovered opium, a sample weighing 30 grams

was taken and was sealed. The remaining opium was also sealed. The

accused was accordingly arrested vide arrest memo Ex.P-5 and memo of

recovery was prepared. The SHO, thereafter, registered a case vide FIR

Ex.P-4 and deposited the recovered opium in the 'Malkhana'. During

investigation, the police recorded the statement of witnesses and sent

the sample to the Forensic Science Laboratory. On chemical examination,

the sample contained in the packet marked 'B' gave positive tests for

the chief constituents of coagulated juice of opium poppy having 5.43%

morphine.

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After completion of all these formalities, the accused was charge

sheeted under Sections 8 and 18 of the Act. The Trial Judge framed

charges against the accused under Sections 8 and 18 of the Act, to

which the accused denied and claimed trial.

The learned Sessions Judge, Baran held that the accused was

guilty, convicted him in terms of Sections 8 and 18 of the Act and

sentenced him to undergo 10 years RI with a fine of rupees one lakh

with a default stipulation of one year's RI.

In appeal, the main stand of the accused respondent was that

there was non-compliance with the requirements of Sections 42 and 50 of

the Act. The High Court held that since the accused was searched on a

public road and the contraband articles were seized, Section 42 of the

Act had no application in view of Explanation appended to Section 43 of

the Act. It was noted that Prem Shanker (PW-2) who was an authorized

officer under Section 42 of the Act informed the accused of his right

to be searched in the presence of the Deputy Superintendent of Police

(PW-3) who happened to be a Gazetted Officer and was present at the

site and if he desired, he can be taken to any Magistrate. The accused

consented for his search in the presence of the Deputy Superintendent

of Police and accordingly search was conducted in the presence of PW-3,

the Deputy Superintendent of Police which was witnessed by other

witnesses, Ramesh Chandra (PW-5) and Rajendra Kumar (PW-6). But, it was

held that the consent given by the accused to be searched in the

presence of the Deputy Superintendent of Police (PW-3) was not

sufficient compliance of Section 50 of the Act.

Learned counsel appearing for the State of Rajasthan submitted

that the High Court's approach is clearly erroneous. It is not a fact

that PW-3 was a member of the raiding party as was observed by the High

Court. Further, option was given to the accused to be searched in the

presence of PW-3 or if he wanted he could be taken to the Magistrate.

The accused himself having consented to be searched in the presence of

PW-3, there was no infirmity.

In response, learned counsel for the accused-respondent submitted

that more trust is put on the Gazetted Officer and, therefore, the High

Court was right in holding that the accused should have taken to some

other Gazetted Officer.

Only question to be adjudicated is the alleged non-compliance of

Section 50. The said provision reads as follows:

"50. Conditions under which search of persons shall

be conducted. -

(1) When any officer duly authorised under Section

42 is about to search any person under the

provisions of Section 41, Section 42 or Section 43,

he shall, if such person so requires, take such

person without unnecessary delay to the nearest

gazetted officer of any of the departments mentioned

in Section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may

detain the person until he can bring him before the

gazetted officer or the Magistrate referred to in

sub-section (1).

(3) The gazetted officer or the Magistrate before

whom any such person is brought shall, if he sees no

reasonable ground for search, forthwith discharge

the person but otherwise shall direct that search be

made.

(4) No female shall be searched by anyone excepting

a female."

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A bare reading of Section 50 shows that it only applies in case

of personal search of a person. It does not extend to search of a

vehicle or a container or a bag, or premises. (See Kalema Tumba v.

State of Maharashtra and Anr. (JT 1999 (8) SC 293), State of Punjab v.

Baldev Singh (1999 (6) SCC 172) and Gurbax Singh v. State of Haryana

(2001(3) SCC 28). The language of Section 50 is implicitly clear that

the search has to be in relation to a person as contrasted to search of

premises, vehicles or articles. This position was settled beyond doubt

by the Constitution Bench in Baldev Singh's case (supra).

In order to appreciate rival submissions, some of the

observations made by the Constitution Bench in Baldev Singh's case

(supra) are required to be noted. It is also to be noted that the Court

did not in the abstract decide whether Section 50 was directory or

mandatory in nature. It was held that the provisions to the Act

implicitly make it imperative and obligatory and casts a duty on the

investigating officer (empowered officer) to ensure that search of the

person (suspect) concerned is conducted in the manner prescribed by

Section 50 by intimating to the person concerned about the existence of

his right that if he so requires, he shall be searched before a

Gazetted Officer or a Magistrate and in case he so opts, failure to

conduct his search before a Gazetted Officer or a Magistrate would

cause prejudice to the accused and render the recovery of the illicit

articles suspect and vitiate the conviction and sentence of the

accused. Where the conviction has been recorded only on the basis of

the possession of the illicit article recovered during a search

conducted in violation of the provisions of Section 50 of the Act, it

was illegal. It was further held that the omission may not vitiate the

trial as such, but because of the inherent prejudice which would be

caused to an accused by the omission to be informed of the existence of

his right, it would render his conviction and sentence unsustainable.

In paragraph 32 of the judgment (at page 200) this position was

highlighted. In para 57, inter alia, the following conclusions were

arrived at:

"(1)That when an empowered officer or a duly

authorized 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 the Act of being

taken to the nearest gazetted officer or nearest

Magistrate for making the search. However, such

information may not necessarily be in writing.

(2) That failure to inform the person concerned

about the existence of his right to be searched

before a gazetted officer or a Magistrate would

cause prejudice to an accused.

(3) That a search made by an empowered officer, on

prior information, without informing the person of

his right that if he so requires, he shall be taken

before a gazetted officer or a Magistrate for search

and in case he so opts, failure to conduct his

search before a gazetted officer or a Magistrate,

may not vitiate the trial but would render the

recovery of the illicit article suspect and vitiate

the conviction and sentence of an accused, where the

conviction has been recorded only on the basis of

the possession of the illicit article, recovered

from his person, during a search conducted in

violation of the provisions of Section 50 of the

Act.

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(5) That whether or not the safeguards provided in

Section 50 have been duly observed would have to be

determined by the court on the basis of the evidence

led at the trial. Finding on that issue, one way or

the other would be relevant for recording an order

of conviction or acquittal. Without giving an

opportunity to the prosecution to establish, at the

trial, that the provisions of Section 50 and,

particularly, the safeguards provided therein were

duly complied with, it would not be permissible to

cut short a criminal trial.

(6) That in the context in which the protection has

been incorporated in Section 50 for the benefit of

the person intended to be searched, we do not express

any opinion whether the provisions of Section 50 are

mandatory or directory, but hold that failure to

inform the person concerned of his right as emanating

from sub-section (1) of Section 50 and render the

recovery of the contraband suspect and the conviction

and sentence of an accused bad and unsustainable in

law.

(7) That an illicit article seized from the person of

an accused during search conducted in violation of

the safeguards provided in Section 50 of the Act

cannot be used as evidence of proof of unlawful

possession of the contraband on the accused though

any other material recovered during that search may

be relied upon by the prosecution, in other

proceedings, against an accused, notwithstanding the

recovery of that material during an illegal search."

It is not disputed that there is no specific form prescribed or

intended for conveying the information required to be given under

Section 50. What is necessary is that the accused (suspect) should be

made aware of the existence of his right to be searched in presence of

one of the officers named in the Section itself. Since no specific mode

or manner is prescribed or intended, the Court has to see the substance

and not the form of intimation. Whether the requirements of Section 50

have been met is a question which is to be decided on the facts of each

case and there cannot be any sweeping generalization and/or strait-

jacket formula.

Section 50 does not involve any self-incrimination. It is only a

procedure required to protect the rights of an accused (suspect) being

made aware of the existence of his right to be searched if so required

by him before any of the specified officers. The object seems to be to

ensure that at a later stage the accused (suspect) does not take a plea

that the articles were planted on him or that those were not recovered

from him. To put it differently, fair play and transparency in the

process of search has been given the primacy. In Raghbir Singh v. State

of Haryana (1996 (2) SCC 201), the true essence of Section 50 was

highlighted in the following manner:

"8. The very question that is referred to us came to

be considered by a Bench of two learned Judges on

22.1.1996 in Manohar Lal v. State of Rajasthan

(Crl.M.P.No.138/96 in SLP(Crl.)No.184/1996). One of

us (Verma, J), speaking for the Bench, held:

"It is clear from Section 50 of the NDPS

Act that the option given thereby to the

accused is only to choose whether he would like

to be searched by the officer making the search

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or in the presence of the nearest available

Gazetted Officer or the nearest available

Magistrate. The choice of the nearest Gazetted

Officer or the nearest Magistrate has to be

exercised by the officer making the search and

not by the accused".

9. We concur with the view taken in Manohar Lal's

case supra.

10. Finding a person to be in possession of

articles which are illicit under the provisions of

the Act has the consequence of requiring him to

prove that he was not in contravention of its

provisions and it renders him liable to severe

punishment. It is, therefore, that the Act affords

the person to be searched a safeguard. He may

require the search to be conducted in the presence

of a senior officer. The senior officer may be a

Gazetted Officer or a Magistrate, depending upon who

is conveniently available.

11. The option under Section 50 of the Act, as it

plainly reads, is only of being searched in the

presence of such senior officer. There is no further

option of being searched in the presence of either a

Gazetted Officer or of being searched in the

presence of a Magistrate. The use of the word

'nearest' in Section 50 is relevant. The search has

to be conducted at the earliest and, once the person

to be searched opts to be searched in the presence

of such senior officer, it is for the police officer

who is to conduct the search to conduct it in the

presence of whoever is the most conveniently

available, Gazetted Officer or Magistrate".

As has been highlighted in Baldev Singh's case (supra) it has to

be seen and gauzed whether the requirements of Section 50 have been

met. Section 50 in reality provides for additional safeguards which are

not specifically provided by the statute. The stress is on the adoption

of a reasonable, fair and just procedure. No specific words are

necessary to be used to convey existence of the right.

The above position was elaborately dealt with in Prabha Shankar

Dubey v. State of Madhya Pradesh (2003 AIR SCW 6592) and in Madan Lal

and Anr. v. State of Himahal Pradesh (2003 (6) Supreme 382).

These aspects were highlighted and reiterated in Smt. Krishna

Kanwar @ Thakuraeen v. State of Rajasthan (JT 2004 (1) SC 597).

Section 50 of the Act deals with conditions under which search of

a person shall be conducted. Section 50 comes in operation when an

officer authorized in terms of Section 42 is to search any person,

under the provisions of Sections 41, 42 and 43. Here comes the

requirement of informing the person about to be searched to exercise

his option to be searched in the presence of nearest Gazetted Officer,

of any of the departments mentioned in Section 42 or the nearest

Magistrate.

If the person so requires, the officer referred to under sub-

section (1) of Section 50 may detain the person to bring him before the

Gazetted Officer or the Magistrate, as the case may be. As was noticed

in Raghbir Singh's case (supra) the Act affords the person to be

searched a safeguard to the effect that he may require the search to be

conducted in the presence of a senior officer. The senior officer may

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be a Gazetted Officer or a Magistrate depending upon who is

conveniently available. That being the purpose of the Act, if any

Gazetted Officer even if he is a police officer of a particular rank is

present nearby when the accused is detained, the accused may be asked

as to whether he would like to be searched in the presence of that

officer or a Magistrate. The foundation of the stand taken by the

accused-respondent which found favour with the High Court is that if he

is a member of the raiding party the requirements of Section 50 are not

met. This is not legally tenable, and in any event on the facts of the

present case it was not so because PW-3, the Deputy Superintendent of

Police reached the spot after the person was detained.

As noted above, in Raghbir Singh's case (supra) the option given

to the accused is only to choose whether he would like to be searched

by the officer making the search or in the presence of the nearest

available Gazetted Officer or the nearest available Magistrate. The

choice of the nearest Gazetted Officer or the nearest Magistrate has to

be exercised by the officer making the search and not by the accused.

In the instant case all the options were made known to the accused and

he himself opted to be searched in the presence of the Deputy

Superintendent of Police (PW-3).

Sections 41, 42, 43 or Section 50 do not speak of a raiding

party. Section 41(2) speaks of arrest by any officer of gazetted rank

of enumerated department or by an officer subordinate to him (but

superior in rank to a peon, sepoy or a constable) to arrest such a

person. Under sub-section (1) of Section 41 a warrant may be addressed

to an officer for arrest of a person under circumstances enumerated in

the said provision. Section 42 deals with action permissible to be

taken by an officer authorized. Section 43 deals with power of an

officer of any of the departments mentioned in Section 42. The officer

exercising power under Sections 41, 42 and 43 can take assistance of

others for the purpose of carrying out the prescribed acts.

The conclusions of the High Court would have been correct if the

officer proposing to effect the search is a Gazetted Officer and he

gives option to be given under Section 50 to the person detained to be

searched in his presence. In that event, the requirement of Section 50

would not be met because the officer proposing to effect the search

cannot act in dual capacity; first as an officer authorized under

Section 42 to search a person and second as the Gazetted Officer in

whose presence the accused may opt to be searched.

The object of the Act being that the search is conducted in the

presence of a superior officer, in order to lend transparency and

authenticity to the search it cannot be held as a principle in law that

if a superior officer happens to be with the officer authorized (which

the High Court has described as being a member of the raiding party)

the position would be different. The High Court proceeds on the basis

that there may be bias on the part of the officer because he was

accompanying the officer authorized. Such a presumption is not legally

available.

The High Court was, therefore, not correct in holding that the

search in the presence of PW-3 was not in compliance with the

requirements of Section 50. Stress is on the search being conducted in

the presence of any of the enumerated categories of the officers. In S.

Jeevanatham v. State through Inspector of Police, T.N. (2004 (5) SCC

230), it was contended by the accused that investigation having been

conducted by the complainant-police officer, the conviction in terms of

Section 8(c) read with Section 20(b)(ii) of the Act was vitiated. The

plea was repelled relying on the decision of this Court in State

represented by Inspector of Police, Vigilance and Anti-corruption,

Tiruchirapalli, T.N. v. Jayapaul (2004 (5) SCC 223). It was observed

that nothing was pointed out to show that the investigation had caused

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prejudice or was biased against the accused. In the instant case, the

accused was informed of his rights and options to be exercised. He

consented to be searched in the presence of PW-3. Therefore, it was not

open to him even to urge non-compliance of Section 50.

In fact in S. Jeevanatham's case (supra) this Court did not

accept the plea that an officer who was the complainant cannot be the

investigating officer. The question of prejudice or bias has to be

established and not inferred. In any event, there cannot be any legal

presumption in that regard. At this juncture, it is to be noted that

under sub-section (3) of Section 50, the Gazetted Officer or the

Magistrate before whom the person who is to be searched is brought can,

in a given case, come to hold that there is no reasonable ground for

the search and shall forthwith "discharge" the person. Otherwise, he

shall direct the search to be made. The expression 'discharge' used in

sub-section (3) of Section 50 is used in the sense that the detention

is terminated.

The powers to detain, search and arrest have been conferred by

Sections 41(2), 42 and 43. Under Section 42(1)(d) the officer

authorized may between sunrise and sunset detain and search and if he

thinks proper arrest any person who he has reason to believe has

committed an offence punishable under Chapter IV relating to the

notified drug or substance. The question of arrest comes after a person

is detained and searched and thereafter if the officer thinks proper

arrest can be effected on the foundation that the officer has reason to

believe that the person so detained and searched has committed an

offence punishable under Chapter IV. It cannot be said that the person

accompanying the officer authorized cannot say 'No' to the proposed

search even if he sees no reasonable ground for search. It is the

legislative trust imposed on a superior officer to act fairly and

reasonably. Therefore, it is for the accused to establish prejudice

which is to be done at the trial. On the facts of the case, actually

these questions do not arise. The object of requiring the search to be

conducted if so required before the specified Gazetted officer or

nearest Magistrate is to ensure that the officers who are charged with

a duty of conducting search conduct them properly and do no harm or

wrong such as planting of an offending drug by any interested party and

preventing fabrication of any false evidence. The provision in essence

intends to act as a safeguard against vexatious search, unfair dealings

and to protect and safeguard the interest of innocent persons. In order

to avoid arrest and nip the investigation in the bud thereby protecting

the liberty of a person, a statutory safeguard is provided in sub-

section (3) of Section 50. Power has been vested in the Magistrate or

the Gazetted Officer before whom the concerned person is brought on his

requisition made under sub-section (2) to forthwith discharge the

person without formal proceedings on his satisfaction that there is no

reasonable ground for search. As a consequence, search takes place only

when he declines to discharge such a person.

Firstly, as noted above PW-3 arrived at the spot after the person

was detained and search was proposed to be done by the officer

authorized. Secondly, the respondent-accused was given the option as to

whether he would like to be searched in the presence of PW-3 or the

nearest magistrate. He exercised his option to be searched in the

presence of PW-3.

High Court's conclusions are clearly untenable. The inevitable

result is that the High Court's judgment is indefensible and is set

aside and that of the trial Court is restored. The accused shall

surrender to custody forthwith to serve the remainder of the sentence.

Appeal is allowed.