NOOR JAHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The two ladies appellants were put on trial by the learned 6th Additional Sessions Judgecum- Special Judge, Motihari by being charged of committing an offence under Section 23(ii)of the N.D.P.S. Act in N.D.P.S.Case No.61 of 2007 and by judgment dated 19.12.2009 they were found guilty of committing the above noted offence. After being heard on sentence on 21.12.2009, each of the two appellants was directed to suffer rigorous imprisonment for ten years and also to pay a fine of L 1,00,000/-, else to suffer another term of rigorous imprisonment for one year. The two appellants have preferred the present appeal to challenge their convictions and sentence passed upon them.

(2.) The prosecution was initiated on the petition of complaint filed by P.W. 1 Bal Krishna Choudhary, who was posted as Inspector in Customs (Preventive) Division, Motihari on 25.07.2007. It was stated by P.W. 1 in his typed petition that a secret information was received that two ladies were carrying charas from Raxaul by bus bearing registration No.BR- 29P/9021 and they were supposed to deliver the same to some one in Motihari. A preventive team was constituted under the leadership of Sri K.K. Upadhyaya (P.W.3) who was Superintendent Customs (P) Division, Motihari and they all came to Raxaul road in Motihari at N.H. 21A for intercepting the bus. The bus was stopped, the two ladies were brought down from the bus and were made to be searched by lady constable (P.W.7 Sheela Devi). It was found that the ladies were carrying a few packets under their respective sarees and both of them accepted that the contents of the packets was charas and accordingly they handed over the packets to the customs officers as a result of which the packets were seized and the seizure memo (Ext-1) was prepared. In presence of witnesses, the Panchnama was also prepared. The ladies made their voluntary statements, Exts-4 and 4/1, and that was recorded by Deepak Sharma (not examined). They were duly arrested and the arrest memo, Exts-5 and 5/1 were also prepared. Samples were taken out of the seized article, which was weighing 8.5 kgs. and the same was sent to the Forensic Science Laboratory for test and it was reported by the Forensic Science Laboratory that it was charas. The complaint petition was accordingly filed which went to trial and, ultimately, the trial ended in the impugned judgment.

(3.) During the course of the trial seven witnesses were examined. P.W.1, as just pointed out, was the complainant of the case and the Inspector who was one of the members of the raiding party. Sri K. K. Upadhyaya was the Superintendent Customs (P) Division, Motihari and he has been examined as P.W.3. P.Ws. 2, 4, 5, 6 and 7, all constables, were accompanying the complainant as members of the raiding party. All the witnesses have stated that after being brought down from the bus the two ladies were searched by P.W.7 Sheela Devi and accordingly the nine packets from the possession of appellant Noor Jahan and eight packets from the possession of appellant Noor Nisha containing a total weight of 8.5 kg. of charas were recovered and, accordingly, the seizure memo was prepared. The witnesses, like, P.Ws.l and 3 have stated that there was prior information about the ladies carrying charas on or about their persons and they were coming from Raxaul. Thus, what appears from the facts and evidence of the case is that the preventive team of the Customs Department which was being headed by P.W.3 Sri K.K. Upadhyaya was well informed in advance about the two ladies were possessing some prohibited material or a narcotic drug. The fact, as such, required that the search was to be conducted as per the provisions of Section 50 of the N.D.P.S. Act which requires that the two appellants ought to have been searched in presence either of a Gazetted Officer or a Magistrate and prior to that, they ought to have been informed about their right of being searched either before a Gazetted Officer or before a Magistrate. I do not want to make the present judgment cumbersome by citing the judgments of the Supreme Court or of this Court also, on the point as right from the case of State of Punjab v. Baldev Singh, 1999 6 SCC 172 and also the case of Vijaysinh Chandubha Jadeja v. State of Gujarat, 2011 AIR(SC) 77), it has consistantly been held that Section 50 creates an obligation upon the authorized officer to inform the suspect of his/her right of being searched either before a Gazetted Officer or before a Magistrate. What was further held in Prabha Shankar Dubey v. State of M.P., 2004 AIR(SC) 486 that this was not a mere formality and a mere right of being informed, but Section 50 created a right of exercising some option by the suspect of getting himself or herself searched either before a Gazetted Officer or before a Magistrate. The relevant part of the judgment of Prabha Shankar Dubey has been quoted by the Constitution Bench in Vijaysinh Chandubha Jadeja case and that reads as under:-