STATE OF HIMACHAL PRADESH Vs. CHAMAN LAL

JUDGEMENT

(1.) THIS appeal by the State is directed against the judgment, dated 1.11.2003, delivered in Sessions Trial No.39 of 2003, by the learned Sessions Judge, Kullu, H.P., whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act). The prosecution story in brief is that on 14.12.2002, PW -11 SI Tameshwar Singh accompanied by H.C. Amar Singh (PW -10), Constable Chand Parkash (PW -1), Constable Bachiter Singh (PW -9) and one Constable Amar Singh were present at Check Post at Bajoura. At about 6.25 p.m., secret information was received by PW -11 SI Tameshwar Singh that one person wearing jeans and jacket of grey colour is carrying charas. It was also informed that this person was traveling in the bus bearing No.HP -01 -2043 owned by Harrison Travels. This information was reduced into writing under Section 42(2) of the Act and sent through Constable Chand Parkash (PW -1) to the Dy. S.P., Kullu.

(2.) THE police party waited for the bus and when it reached the Check Post at Bajoura, the bus was stopped and on checking the bus, the accused was found sitting on seat No.26. The accused, vide Ext.PW -7/A, was given an option to be searched either before a Magistrate or a Gazetted Officer and according to the prosecution, he consented to be searched by the police officials. Thereafter, the accused was brought down from the bus and taken to the Check Post where the search was conducted and during this search, charas was recovered from the pockets of the jeans as well as from the pockets of the jacket, which, on weighment, was found to be 1.00 kg. Two samples of 25 grams each were taken and were sealed with seal impression X. The remaining charas was sealed in a separate packet with seal bearing impression X. NCB form Ext.PW -5/C was filled up at the spot and other codal formalities completed and the charas taken into possession, vide Ext.PW -7/C. Thereafter, the case property was produced before SHO Kamla, Sub Inspector, (PW -6), who resealed the same with her seal bearing seal impression T and the case property was deposited in the Malkhana by MHC Narain Singh (PW -5). Thereafter, one sample was sent to CTL, Kandaghat. On analysis, vide report Ext.PA, the contents were opined to be that of charas. On this basis, the accused was challaned for having committed the offence punishable under Section 20 of the Act.

(3.) THE Constitution Bench of Apex Court in Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609 dealt with the question as to how the provisions of Section 50 have to be complied with. The Apex Court held that Section 50 is mandatory and casts a duty upon the Investigating officer to inform the accused that he had a legal right to insist that he be searched either by a Gazetted Officer or a Magistrate. The Apex Court interpreted Section 50 in the following manner: - 24. Although the Constitution Bench in Baldev Singh case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub -section(1) of Section 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, 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 the person during a search conducted in violation of the provisions of Section 50 of the NDPS Act. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. We respectfully concur with these conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. xxx.. xxx.. xxx... 27. It can, thus, be seen that apart from the fact that in Karnail Singh, the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting search, seizure and arrest without warrant or authorization, the said decision does not depart from the dictum laid down in Baldev Singh case insofar as the obligation of the empowered officer to inform the suspect of his right enshrined in sub -section(1) of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two newly inserted sub -sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub -section (6) of Section 50 of the NDPS Act makes it imperative and obligatory on the authorized officer to send a copy of the reasons recorded by him for his belief in terms of sub -section (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial. xxx.. xxx... xxx.. 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimize the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorized officer under sub -section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. xxx. xxx.. xxx... 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.