STATE OF HIMACHAL PRADESH Vs. PIRTHI CHAND

JUDGEMENT

(1.) Leave granted.

(2.) We have heard the counsel on both sides. On March 24, 1986, on receipt of a secret information that a contraband, viz,. Charas was being dealt with at the bus stand, Head Constable Rattan Singh along with other police officials was present at bus stand, Amb. They secured the presence of one Pradhan Subhas Chand and one Gurdas Ram and raided the house of the first respondent., On search, they found 1 kilo 15 grams of Charas. They took sample and divided the same into three parts. One was given to the accused, another was sent to the Court and third one was sent to the Chemical Examiner for analysis. On analysis, it was found that it was Charas. Accordingly charge sheet was filed to prosecute him under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 [for short, "the Act"]. After considering the charge-sheet, the learned Sessions Judge by his order dated July 6, 1987 discharged the respondent from the offence under Section 20. On revision, the High Court by the impugned order dated June 4, 1992 made in Criminal Revision No. 118/87 confirmed the same. Thus this appeal by special leave.

(3.) The question is whether the learned Sessions Judge was justified. at the stage of taking cognizance of the offence. in discharging the accused, even before the trial was conducted on merits, on the ground that the provisions of Section 50 of the Act had not been complied with. This Court in the State of Punjab v. Balbir Singh [(1994) 3 SCC 299] has considered the provisions of the Act. Section 50 has been held to be mandatory. In paragraph 16, this Court has held that it is obligatory on the part of the empowered or the authorised officer to inform the suspect that, if so required, he would be produced before a Gazetted Officer or a Magistrate and search would be conducted in his presence. It was imperative on the part of the Officer to inform the person the above right and if he failed to do the same, it amounted to violation of the requirement of Section 50 of the Act. It was held that when the person was searched he must have been aware to his right and that it could be done only if the authorised or empowered Officer informed him of the same . Accordingly. this Court by implication read the obligation on the part of authorised Officer to inform the person to be searched, of his right to information that he could be searched in the presence of the Gazetted Officer or the Magistrate in Saiyad Mohd. Saiyaad Umar Saiyed v. State of Gujarat JT 1995 (3) SC 489 a three Judge Bench of this Court had reiterated the above view and held that having regard to the grave consequences that might entail the possession of illicit articles under the Act. viz., the shifting of the onus to the accused and the severe punishment to which he became liable. the Legislature had enacted safeguards contained in Section 50. Compliance of the safeguards in Section 50 is mandatory obliging the Officer concerned to inform the person to be searched of his right to demand that search could be conducted in the presence of a Gazetted Officer or a Magistrate. The possession of illicit article has to be satisfactorily established before the Court. The Officer who conducts search must state in his evidence that he had informed the accused of his right to demand, while he is searched, in the presence of a Gazetted Officer or a Magistrate and that the accused had not chosen to so demand. If no evidence to that effect is given, the Court must presume that the person searched was not informed of the protection the law gives him and must find that possession of illicit articles was not established. The presumption under Article 114, illustration (e) of the Evidence Act, that the official duty was properly performed, therefore does not apply. It is the duty of the Court to carefully scrutinise the evidence and satisfy that the accused had been informed, by the concerned Officer, that he had a right to be searched before a Gazetted Officer or a Magistrate and that the person had not chosen to so demand.