JUDGMENT [ENTITY], J.
1. This appeal, under [SECTION] and [SECTION] of the [ACT] (in short 'the Code'), is directed against the judgment and order dated 18.7.2001 passed by Shri [ENTITY], 2nd Additional Sessions Judge, East Champaran, Motihari in [CASE NUMBER] by which the appellants were convicted under [SECTION] of the [ACT] (in short 'the Act') and sentence to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs. 1,00,000/- each, in default to further undergo rigorous imprisonment for one year each.
2. From the prosecution case it appears that Shri [ENTITY] (P.W. 5) the Inspector of Customs received an information about the commission of the alleged offences. The Assistant Commissioner Customs Shri [ENTITY] (P.W. 6) headed a raiding party and went to Gandhi Smarak Belbanwa, Motihari where the raiding party found two ladies coming on a rickshaw. The raiding party stopped the said rickshaw and after performing all the formalities of search the lady Inspector Customs, Miss. [ENTITY] (P.W. 7) searched the persons of these two women on which 4 kgs. of [ENTITY] each was recovered from them. The recovered articles were seized, a seizure list was prepared in presence of the witnesses and on Laboratory test seized articles were confirmed as [ENTITY]. A complaint was filed by P.W. 5 on which cognizance of the offence was taken by the learned Sessions Judge. The appellants were tried by the learned Additional Sessions Judge named above who convicted them in the manner indicated above.
3. In this appeal the appellants have contended that the impugned judgment of conviction is bad in law and wrong on facts. Learned Court below has failed to notice that no independent witness was examined to support the prosecution case of search in his presence. No seizure list was prepared as well appear from the evidence of P.W. 7. Two independent witnesses whose signatures appear on the Panchnama of the seizure list have not been examined. It was not disclosed to the appellants that they were entitled to get themselves searched before a Gazetted Officer or before Magistrate as required by [SECTION] of the Act. The chemical examination report of the seized articles has not been brought on the record. The judgment of conviction passed by the learned Additional Sessions Judge is wrong and cannot be sustained. On these grounds, it has been contended that this appeal be allowed and the judgment of conviction of the learned Court below be set aside.
4. The parties have been heard in detail and various question raised in this appeal. Before taking up for consideration the questions of law would briefly refer to some relevant facts and the evidence on record as also to the relevant provisions of law. As per the prosecution case the members of the raiding party had detected that the two appellants were carrying contraband [ENTITY] and they had seized the same. In this connection I will firstly refer to evidence of P.W. 6, Shri [ENTITY], Assistant Commissioner of Customs. In his cross-examination he has clearly stated that neither he nor anybody of the raiding party had informed the two appellants that they have got a right to get the search conducted before a Gazetted Officer. He has further stated that he had not recorded the confessional statement of two appellants. According to him the two applicants were taken on a rickshaw to the Custom Office where their persons were searched by P.W. 7 [ENTITY]. P.W. 6 has further stated that at the time of the search no female witness was called. He has admitted that no independent witness was called before wham the search was conducted. So far as P.W. 7 is concerned she has stated in her cross-examination that at the time of the search no female or male witness was present. Before conducting the search she had not given her search as required by law. No independent witness was present at the time of the search. She has further admitted that no seizure list was prepared by her. Also she has stated that she did not obtain the signature of anybody on any paper at the time of the search. The aforesaid evidence of P.W. 6 and 7 appears to be important to which I will refer to subsequently.
5.1 will next refer to [SECTION] of the Act. It runs as follows:
50. Conditions under which search of persons shall be conducted: (1) When any officer duly authorised under [SECTION] is about to search any person under the provisions of [SECTION], [SECTION] or [SECTION], he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the Department mentioned in [SECTION] or to the nearest Magistrate.
(2) if such re-visition 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.
6. In this Section a reference has made to [SECTION], [SECTION] and [SECTION]. [SECTION] deals with an officer who is empowered in this behalf by the general or special order of the Central Government or of the State Government. Such officer may be briefly referred to as empowered officer. Another class of officer has been referred to as the authorised officer as will appear from [SECTION] of the Act. Those authorised officers appear to be the persons who may be authorised by the empowered officer to conduct the search. In the present case on behalf of the State it has been submitted that the Assistant Commissioner of Customs is himself a Gazetted Officer and, therefore, it was not necessary for him to get the search conducted by another Gazetted Officer or a Magistrate as per [SECTION] of the Act. In other words it has been submitted that if the search was conducted in his presence there was sufficient compliance with the provisions of [SECTION] of the Act. On behalf of the appellants these submissions have been challenged. In view of these submissions of the parties on this point I will proceed to examine them in detail.
7. On behalf of the State the learned A.P.P. has placed reliance on the case of [PRECEDENT]. From the facts of this case also it appears that the search was conducted by raiding party led by Assistant Commissioner, Customs (P) Division Motihari. It further appears that the appellants were not taken to a gazetted officer or a Magistrate for the purposes of search and seizure. In this decision it was held that under the aforesaid facts there was sufficient compliance with the provisions of [SECTION] of the Act though on behalf of the appellants in the said case it was contended that for the proper compliance with the provisions of this Section the search and seizure has to be conducted in presence of a gazetted officer or a Magistrate even when the raiding party was led by a Gazetted Officer. This submission on behalf of the appellants was seriously challenged on behalf of the State and was decided against them. In the present case also on behalf of the appellants it has been submitted that though P.W. 6 was a gazetted officer still the search and seizure should have taken place in presence of another gazetted officer or Magistrate as required by [SECTION] of the Act.
8. I will firstly refer to the judgment of the Division Bench passed in the case of [ENTITY] (supra). In this decision in paragraph 6 a reference has been made to decision of the Hon'ble Supreme Court reported in [PRECEDENT] on which the reliance was placed by the appellants before the Division Bench. Though a reference to this case has been made in paragraph 8 of the judgment the names of the parties to this reported decision have not been disclosed. The practice invariably is that in judgment of this Court or of Hon'ble Supreme Court while referring to another reported case firstly the names of the parties are disclosed and then the citation of the reported case is given. In the present case it appears that this has not been done. On referring to [PRECEDENT] in the reports it appears that at page 172 no fresh case has been reported. As a matter of fact that case of [ENTITY] has been reported from page166 of this report which is continued up to page 173. Therefore, obviously, reference of a case reported in [PRECEDENT] as mentioned in paragraph 8 of this judgment appears to be oversight and cannot be said to be correct. Similarly, in paragraph 9 of this judgment a reference has been made to the case of [PRECEDENT] whose citiation has not been given, only (supra) has been mentioned after the name of [PRECEDENT],. No such case has been earlier referred to in this judgment and it is not clear what the learned Judges meant by (supra) after mentioning [PRECEDENT] in paragraph 9 of this judgment.
9. In this connection my attention has also been drawn to another Division Bench case of this Court, namely, [ENTITY] v. The State of Bihar 2001 (2) P.L.J.R. 87. In this decision also it appears that the proper compliance with the provisions of [SECTION] of the Act was under consideration. In this case also the raiding party was led by the Deputy Commissioner, Preventive and Vigilance, Central Excise, Patna who happened to be a gazetted officer. In this case also a reliance has been placed on a decision reported in [PRECEDENT], though it has already been noticed above that at this page and under this reference no case has been reported. Also from this judgment it appears that reliance has been placed on the case of [ENTITY] (supra) and it was held that as the search and seizure had taken place in presence of a Gazetted Officer it was sufficient compliance with the provisions of [SECTION] and there was no necessity of taking the appellants to the presence of another Gazetted Officer or a Magistrate for the purpose of search and seizure. As noticed above there is no such reported case as [PRECEDENT] on which reliance has been placed in both the cases, namely, in the case of [ENTITY] (supra) and [ENTITY] (supra). From this it would appear that obviously the decisions in these Division Bench cases do not appear to be correct and they run counter to the reported decisions of the Hon'ble Supreme Court to which I am referring to presently.
10. I will firstly refer to the case of State of Punjab v. [ENTITY] . In this decision it was held that the provisions of [SECTION] of the Act are mandatory in nature and it was obligatory on the part of the empowered officer to inform the suspect that if he requires he would be produced before a Gazetted Officer or a Magistrate and search could be conducted in his presence. It was further held that it was imperative on the part of the officer to inform the person of the above right and if he failed to do so, it amounted to violation of the requirement of [SECTION] of the Act. In this connection a reference may also be made to the case of [PRECEDENT]. This was a decision by three Hon'ble Judges of the Hon'ble Supreme Court in which it has been held as follows:
We endorse the finding in [ENTITY] case that the provisions in this behalf are mandatory and the language thereof obliges the officer concerned to inform the person to be searched on his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate.
In this decision a reference has also been made to the case of [ENTITY] (supra) and the findings of this case of [ENTITY] case were confirmed by three Judges Constitutional Bench in this case.
11. I will next refer to the case of State of Punjab v. [ENTITY] (1999) 6 S.C.C. 172. It was probably this case to which reference has been made in two reported decisions of this Court in the cases of [ENTITY] (supra) and [ENTITY] (supra) though by mistake the reference has been given [PRECEDENT]. In the case of [ENTITY] (supra) which was by a constitutional Bench of the Hon'ble Supreme Court, it was held that it was obligatory for the empowered officer and it was his duty before conducting the search of the person of the suspect to inform him that he has a right to require his search being conducted in presence of a Gazetted Officer or a Magistrate and failure to so inform the suspect of his right would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in [SECTION]. It was further held that if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a Gazetted Officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to the accused and also render the search illegal and the conviction and sentence of the accused based solely on recovery made during that search bad. In paragraph 57 of the judgment in the case of [ENTITY] (supra) it was held as follows:
(1) That when an empowered officer or a duly authorised 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 [SECTION] of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessary 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.
12. I will next refer to the case of [PRECEDENT]. In this decision also a reference has been made to the empowered officer as noticed in [SECTION] of the Act and also to the authorised Officer. While the empowered Officer is, a Gazetted Officer the authorised Officer may not be a Gazetted Officer. In paragraph 4 of this decision it has been observed as follows:
A combined reading of the provisions of [SECTION] and [SECTION] would make it crystal clear that whenever a search of a person is about to be made on the basis of personal knowledge or information received in that behalf, then if the person to be searched requires to be taken to a Gazetted Officer or the nearest Magistrate, the same must be complied with and failure to compliance of the same would constitute an infraction of the requirements of the provisions of [SECTION], which would ultimately vitiate the conviction. For the purpose of complying with the provisions of [SECTION], no differentiation can be made on a plain reading of the language used in [SECTION], depending upon the officer who is going to search the person concern The person to be searched has been afforded the minimum right to be searched before another Gazetted Officer or the Magistrate and that right cannot be taken away, merely because the officer going to search happens to be a Gazetted Officer, who has been empowered either by the Central Government or by the State Government by a general or special order. In fact the legislature has enacted the safeguard contained in [SECTION] to obviate any doubt of the illicit articles under the Act and this provision was engrafted having regard to the grave consequences that may entail the possession of illicit articles under the [ACT], namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable.
13. From paragraph 6 of this judgment it would appear that it was submitted before the Hon'ble Supreme Court on behalf of the State-Respondent that the requirement of compliance of [SECTION] will not arise if a search is going to be made by an empowered officer who happens to be a Gazetted Officer. The Hon'ble Supreme Court has held that this submission made on behalf of the State-Respondent was devoid of any substance inasmuch as the Hon'ble Supreme Court in no uncertain terms has held that when an empowered officer or duly authorised 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 [SECTION] of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search.
14. In this connection a reference may also be made to the case of [PRECEDENT]. In this decision also it was held that the position of law was that the person to be searched under this Act was required to be told about his right under [SECTION] before he was to be searched and it was further held that this was mandatory requirement.
15. From the aforesaid authoritative decisions of the Hon'ble Supreme Court it would become clear that even if the raiding party consists of a Gazetted Officer in whose presence the search is made of the person of the appellants that would not be sufficient compliance of the provisions of [SECTION] and would not be legal and correct in the eye of law. The Hon'ble Supreme Court in no uncertain terms has clearly laid down that even when the search is held in presence of a Gazetted Officer of the raiding party it was his duty to inform the appellant or the person to be searched of his right to get the search conducted in presence of a Gazetted Officer or a Magistrate. It was not proper for any such Gazetted Officer of the raiding party to get the search conducted in his presence without informing the person concerned of his right to be searched in presence of another Gazetted Officer or a Magistrate. Any failure to do so would render the conviction of that person illegal if the same based on the recovery of the contraband articles from his possession.
16. In this connection a reference may also be made to another Bench decision of this Court in the case of [PRECEDENT]. In this decision also a reference has been made to the case of [ENTITY] (supra) and the findings recorded therein and the appeal was allowed on account of non-compliance of [SECTION] of the Act Thus, it appears that there is another Division Bench decision of this Court which runs counter to the finding of two other Division Bench decisions of this Court in the cases of [ENTITY] (supra) and [ENTITY] (supra). From this decisions, however, it becomes clear that the law on this point is well settled as noted above, since it is based on the decision of Hon'ble Supreme Court in the case of [ENTITY] (supra).
17. So far as in this case it may be mentioned that though from the record it appears that the search was conducted in presence of two witnesses, namely, [ENTITY] and [ENTITY], they have not been examined in this case nor the seizure list has been brought on the record. As admitted by P.W. 7 who has conducted the search, no witness was present at the time when she recovered [ENTITY] from the persons of these two appellants. From this also it would appear that the evidence adduced in this case is far from satisfactory and it can safely be held that the prosecution has failed to prove its case beyond all reasonable doubts.
18. From the detailed discussions made above it becomes clear that the judgment of conviction of the learned Court below cannot be sustained in the eyes of law.
19. The appeal is, accordingly, allowed and the judgment of conviction of the learned Court below is set aside. The appellants are acquitted of the charge framed against them. It has been stated that both the appellants, namely, [ENTITY] and [ENTITY], are in jail. They are directed to be released forthwith, if not required in any other case.