SAYED AHMED QURESHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) WHETHER there has been non compliance of the provisions of Section 50 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and whether on that account the present prosecution and the resultant order of conviction and sentence stands vitiated is the only question which has been urged before us in the present appeal. Section 50 of the N. D. P. S. Act, which has been held to be mandatory in the case of "state of Punjab Vs. Balbir Singh" (AIR 1994 S. C. 1872), in so far as it is relevant, provides as under :- 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 or 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 ). . . . . . . . . . . " " (4 ). . . . . . . . . . . "

(2.) IN the aforesaid case of the "balbir Singh" (supra) the Supreme Court, after referring the principles laid down in "miranda V. Arizona" (1966) 384 US 436", has observed, as follows : " When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a gazetted officer or a magistrate. Thus the provisions of Section 50 are mandatory. " 22.Both under Sections 41 and 42, the officers empowered can enter and search the place and also arrest the person suspected to have committed the offence either on the basis of his own knowledge or on the basis of information reduced to writing. If an arrest is made and a person is to be searched, then as noted above Section 50 comes into operation and the search of the person has to be carried out in the manner provided thereunder. Some of the High Courts also have taken the same view. IN Jang Singh V. State of Haryana (1988) 1 Crimes 446 (P&h), it was held that it is an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right to be searched in the presence of a gazetted officer or a magistrate and failure to do so warrants his acquittal. IN State of Himachal Pradesh V. Sudershan Kumar alias Kala, (1989) 3 Crimes 608 : (1989 Cri. L. J. 1412) (Him Pra) a Division Bench of the High Court held that the provisions of Section 50 sub-section (1) are mandatory and violation thereof per se would be fatal to the prosecution case. " Based on the above observations Miss. Gupta appearing on behalf of the Appellant has strenuously urged that in the present case the accused has been made aware of his right to be searched only in presence of a Magistrate. He has not been made aware of his right of being searched either in presence of a Magistrate or a gazetted officer. According to Miss. Gupta the accused has a two-fold right. He can opt for being searched either before a magistrate or before a gazetted officer. If he has been offered only one choice and has not been offered the other, there has only been a partial compliance. A partial compliance would not remedy the vice of non-compliance of the provision of Section 50 of the Act. IN the circumstances, the entire prosecution and the resultant conviction is liable to be quashed.

(3.) MISS. Gupta has next relied upon an another decision of this Court in the case of "muhamed Phiroz Hanif Ansari Vs. State of Maharashtra AND- Rashid Vasir Shaikh Vs. State of Maharashtra and another" (Criminal Appeal No.53 of 1994 with Criminal Appeal No.538 of 1994) decided by N. D. Vyas & Smt. R. P. Desai, JJ. on the 10th of June, 1996. In that case the police officer, after disclosing his identity to accused had told them that he wanted to take their personal search. He also told them that they had a right to take their search in the presence of a gazetted officer. He further told them that he himself was a gazetted officer and that the accused declined that offer. On the aforesaid facts, the Court posed a question for consideration, "whether asking a suspect if he wants to be searched in the presence of a Gazetted Officer and the Officer conducting the search informing him that he is a Gazetted Officer, would amount to compliance with the provisions of Sec. 50 of the NDPS Act ? In other words : whether non-mention to the suspect of his option to be searched before a Magistrate is fatal ?". On the aforesaid facts, the Court observed, as under: 14.In our view, Section 50 of the said Act has not been complied with. The accused, as it appears from the record, were asked only as to whether they would like to be searched in presence of a Gazetted Officer. Not only that but from the record it appears that the officer in charge of the raid conveyed to the accused in so many words that he was himself a Gazetted Officer, thus conveying that it was not necessary that they could be searched in the presence of any other Gazetted Officer or a Magistrate. It is possible that if the accused were informed that he could be searched in the presence of a Gazetted Officer or a Magistrate they might have opted for a Magistrate. In short the accused had to be made aware of their right to opt to be searched either before a Gazetted Officer or a Magistrate. The salutary principle behind sec. 50 of the Act appears to be that the accused must be made aware of his right to be searched before a senior person viz. , either a Gazetted Officer or a Magistrate. Mentioning of Gazetted Officer or a Magistrate in the said section is not an idle formality but to give a choice to the person to be searched in the presence of either of the two. Ignoring mentioning of any one of them while supposedly making the accused aware of his right can hardly be considered a compliance of the mandatory provisions of Sec. 50 of the Act. In this view of the matter when Section 50 of the NDPS Act has not been complied with, the sequitur would be that the trial is vitiated. In these circumstances, the convictions are set aside. Both the accused i. e. Appellants in their respective appeals, are ordered to be released immediately. . . . . . "