^^^^g??w:'r:^ •[- CF0000058176 ^ L^C'*"""" --.-..-.-^'~x BtttM •ikaiKl»B. •S. " .1. •.; ^ .^.;iis^^ ^^?' '^•^h'''''^^^ys^ 3n .the-'Eigh Goart of Madhys.prsdesia et; Jabaigm.. - GriBiQisI apBgel N©.6(3ef1?95. - . SSDf; BSK ©'KerdKSBB af Bterss. pstel egea s'swt SL yasr's, residsot af Banssla ®rdtiBder'isrbstor P.S^.Bs.lssgaar ..... ..A.ggelIsBl:. (Accuss<3 ) ( 3)3 ^811 ) i; ex s us • State ®fM.p.'ttar&tagh Tsrteter P.&. '*ti. • m f!s \ i''.:.S4^F! IJisES8 SiS ;. B!:r BK' Kil;' MSg!r ityitBi-' s ais "!<6> '~Ti'"]l/ 1;^. .1^ f^ ^'/•"^'^ A^ 'e:<'3^I»^I^~ -'} ;'^^ 1^->IW^ HIGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Criminal Appeal No.603of1995 APPELLANT ' Sant Ram alias Kordu VERSUS RESPONDENT State of Madhya Pradesh Post for pronouncement of the judgment on 3.3.2011. Sri/ Pritinker Diwaker Jadge • -\ 1: ''^. ^Fi APPELLANT RESPONDENT HlGH COURT OF CHHAtTISGARH AT BlLASPUR (Hon. Mr. Justice PritinkerDiwaker) Criminal AppeaiNo. 603 of 1995 Sant Ram alias Kordu VERSUS State of Madhya Pradesh Ms. Sudha Agrawal counsel for the appellant. Shri Vaibhav GoVerdhan PL for the respondent/State. CRtMINALAPPEALUNDERSECTlON3740FTHECODEOF CRIMINAL PROCEDURE. JUDGMENT (^.0^.2011) This appeal is directed against the judgment and order dated 7.3.1995 passed by the'Additional Sessions Judge Bilaspur in, Special Case No. 1_18/1993 convicting the accused/appellant under Section 22 of the Narcotic Drug and Psychotropic Substance Act (for short the "Act") and sentencing him t6 undergo rigorous imprisonmeht for 10 years and pay fine of Rs. 1,00,000, in defaultof payment of fine to further undergo rigorous imprisonment for two anda half years. 2. Case of the prosecution in brief is that on 22.9.1993 one Arun Mishra - Station House Officer (PW-3) received a secrete information that the accused/appellant was in possession of brown sugar and after making entry in the Rojnamcha Sahha Ex. P-4 he Informed his superior officer namely J.S. Parihar about the same on phone and^herrproceeded towards the Railway Station. It is alleged that th^ ^'ccused/appellant was found near the salary office 6f the Railway Stafion and informed that as he was in possession of the C illiGit brown sugar, he was required to be searched. The accused/appellant was also informed by the Statioh House OffiGer that he could be searched either by him or by the Gazetted Officer or the Magistrate, on which he gave consentfor being searched by this : witriess' himself. On search.the accused/appellant was found in possession of brown sugar weighing one gram which was seized from his pocket vide seizure memo Ex. P-1. After completing all the procedural formalities FIR Ex. P-7 was registered on thesame day for an offence under Section 22 of the Act. After investigation, challan was filed by the police on 31.12.1993. 'v^: 3. So as to hold the accused/appellaht guilty, prosecution has examined 03 witnesses "insupport of its case. Statement of the accused/appellant was also recorded under section 313 of the Code 6f Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties the trial Court has convicted and sentenced the accused/appellant herein as mentioned above. 5. Heard counsel for the parties and perused the material available on record includjng thejudgment impugned. 6. Counsel for th-e appellant submits that in the case in hand the mandatory provision of Section 50 of the Act have not been complied with in its true spirit &nd this apart both the seizure witnesses namely Nasir Ali (PW-1) and Mujfar Khan (PW-2) have notsupported the caseofthe prosecution and have been declared hosfile. 7. On the other hand counsel for the respondent/State supports the judgment impugned and submits that the findings recorded by the trial Court being in consqnance wifh the provisions of law are well founded and call for no interference by this Court. Hesubmits thatseizure ofthe contraband has been made by ArunMishra (PW- 3)and e^v^ri if the seizure witnesses have not supported the case of the prosecution, the judgrpent impugned cannot besaid to suffer fromanyillegality. 8. Nasir Ali (PW-1) - the witnes.s to the seizure of the contraband has categorically stated that no seizure whatsoeverwas made in his presence and that hissignature was obtained by the Tarbahar police Saying. that recovery of some brown sugar was being made in the police statibn. •Almost same thing has been stated by the other seizure.witness namely MujfarKhan (PW-2). Station House Officer- •^ ^. Arun Mishra (PW-3) who had done investigation in the case has duly supported the case of the prosecution stating that after receiving a secrete information regarding the appellant carrying brown sugar, he eritered the same in the.Rojnamcha Sanha and then forwarded it to his superior officer on telephone. Thereafter acting upon the information received by him he proceeded to the Railway Station where near the salary office he met the accused/appellant and informed him that as he was carrying brown sugar, his search was required to be made. The accused/appellant was also informed by this witness that he could be searched either by him or by the Gazetted Officer or the Magistrate, on which he gave consent for being searched by this witness himself. On search, the accused/appellant was found in possession of brown sugar weighing one gram wrapped in polythene which was seized from his pocket vide seizure memo Ex.; P-1. 9. According to the latest decision of the Supreme Court in the matter of Vijaysinh Chandubha Jadeja v. State of Gujrat compliance of provisions of Section 50 of the Act in its true spirit is mandatory. Relevant portion of the said decision reads as under: 18. Section 50 oftheNDPS Act prescribes the conditions under which personal search of a' person is required to be conducted. Being the pivptal prqvision, the section, (as amended by Act~9 of 2001, inserting sub-sectipns (5) and (6) with effe'ct from 2-10-2001) is extracted in full. It reads as under: "50. Conditions under which search of persons shall be conductecf.—(1)When ^ny 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 of any of thg ^partments mentioned in Section 42 or to the nearest Magistrate. . (2) If such requisifen 1s made, the pfficer may detainthe pei-so'n until he c'an bring him before the gazettedofficer or the Magistrate referred fo in sub-section (1). (3) The gazetted officer or the Magistrate before whom any's'ucti person is broughtshall; ifhe 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.. (5) When an officer duly authorised underSectjon 42 has' reasoh to believe thaf it is not possible to take the person to be searched to the nearest gazetted officer or "^'^._'^ "*.!•' ~^J] >.,..^e/ '• 'tisssS' -<^-. Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest gazetted officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure,.1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 19. Sub-section (1) pf Sectidn 50 provides that when the empowered officer is about to search any suspected persqn, he shall, ifthe person to besearched so requjres, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section (2), it is laid down that if such request is made by the suspected person, the offjcer who is t6 take the search, may detain the suspect until he can be brought before such gazetted officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the gazetted pfficer or the^Magistrate, the empowered officer Fs restrained from effectjng the search bf the person concerned. He can only detam the suspect for being produced before the gazetted officer or the'Magistrate, as'the case may be. Sub-sectipn (3) lays down tliat when the person td be searched is brouglit before such gazetted bfficer or the Magjstrate and such gazetted pfficer or the Magistrate fjnds Ihat there are no reasonable grounds for search, he shall forthwith discharge fhe person lo be searched, otherwise he shall direct the search to be made. 1 20. The mandate of Section 50 is precise and clear Viz, if the person intended tp be searched expresses to the authorised officer hisdesire to be taken to the nearest iazetted officer or the Magistrate, he cannot be searched till the gazetted officer or tfie Magistrate, as the case may be, directs the authorised officer t6 do so. 21. At thisjunGture, we must state that the issue befqre us in terms of'thereferral order is not about the applicability of Section 50 of the NDPS Act per se but js cohfined to'the scope and width of the expression "if the perspn to be sea'rchedso reguires" as figuring in sub-secfion (1) of the said section. Therefore, we deem it unnecessary tq evaluate the submissions made by the learned counse[ regarding^ the applicability of the rigours of Section'50 of the NDP'S Act when a se'arch of the suspect js conducted by an pffiffer empowered under Section 41 of the said Act. 22. We may, hpwever, add_ that whHe cpnsiderjng the auestion of comDliaQce with Section 50 qf the NDPS.Act, fKe'Constitution'Berteh in Baldey Singh^ considered the of Section 41 as well. It observed as under: (SCCp. 189,para8) "8. Section 41 of the NDPS Act provides that a Metropblitan Magistrate or a Magistrate of the First Class or ahy Majgisfrate of the Second Class specially empowered by the State Government in this behalf^may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have cpmmitted anyoffence punishable under Chapter IV. Vide sub^section (2)'ttte power has also been yested in gazetted officers of fhe Departments of Central Excise, Narcotics, Customs, Jl. . -~^ ••;-^ ^ -.^.if' ::.,y' Revenue Intelligence or any other department of the Central Government or of the Border Security Force, empowered in that behalf by a general or special order of the State Government to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or to search any person or conveyance or vessel or building, etc. with a view to seize any contraband or document or other article which may furnish evidence of the co'mmission of such an offence, concealed in such building or conveyance or vessel or place." (emphasis in original) 23. In the above background, we shall now advert to the controversy at hand." Fpr this purpose, it would be necessary'to recapitulate the conclusions, arriv^d at by the Constitutfon „ Bench in Baldev ^Singh case4. We_are concerned with the following conclusions: (SCC pp. 208- 10,para57) "(1) That when an empowered officer or a duly authorised officer acting on prior information is about to searc/7 a person, it is imperative for him to mform the person concerned of his right under sub-section (•?) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistr-ate for making the search. However, such information Fftay not necessarily be in writing. (2) That failure to Jnform 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. (3) That a search made by an empowered ofRcer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search 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 beer, recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section50oftheAct. ' (5) Tbat whether or not the safeguards provided in Sec^Fon 50 have been duly observed would have to be det6rmined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for i-eco'Wing an order of conviction or acquittal. Without giving .an opportunity to the prosecution to establish,"at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short. a criminal triaL (6) That in the context in which the protection has been incorporated in. Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failureto inform the person concern'ed of his right as emanating from sub-section (1) of -6- Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may berelied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search." (emphasis in original) 24. Although the Cqnstitution Bench in Baldev Singh case4 did npt decide in absolute terms the question whether or not Section 50 of the NDPS Act was clirectpry or /et it was held that prqvisipns of sub-section (1) of Sectiori 50 make it imperative for the empowered officer to "inform" the personconcerned (suspect) abput the existence of his right that if he so reqyires, he shall be searched before a'gazetted officer pr a Magistrate; failure to "inform" the suspect about the existence 6f his said right wquld cause prejudice to him, and in case he_so opts, failure toconducfhis search before a gazetted ofRcer or a Magistrate, may not yitiate the trial but would render the recoyery of the illicit article suspect and vitiate the convictibn and sentence of an accused, where the conviction has- been recorded only on the basis of the possession of the illicitarticle, recovered fromthe person during a search cqnducted in viplation qf the proyisions qf Section 50 of the NDPSAct. The Court also noted that it was not necessary that the information reqyired tp be given under Section 50 should be in a prescribed form or jn writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer.pr a Ma^istrate, if so reqyired by him. We respectfully concyr witft ^these conclusions Any other interpretatfon of the provision would make the valuable right'conferred on the 'suspect illusory and a farce. 25. As noted abdve, sub-sections (5) and (6)were inserted in Section 50 by Act 9 of 2001. It is pertinent to 'note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub- sections viz. when the authorised officer has reason to believe that any delay in search of the person is fcaught with the ^ossibility of the person to be searched parting with ^ossession of any narcotic drug or psychotropic sub^tance, etc., or article or document, he may proceed to search the person instead 'of taking him to the nearest gazetted officer orl4/Iagistrate. However, even in such cases a safeguard against any arbitrary use of power has been providedurider.sub-section (6). Under the saidsub- sectibn, the empoweredofficer isobliged tosend a copy of the reasons,so recorded, to his immediate official superior within seventy-two hours of the search. In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magjstrate. 26.-The 'object and the effect of insertion of sub-sections (5) and (6) were considered by a Constitution Bench of this II --7— Court, of which one of us (D.K. Jain^ J.) was a member, in Karnail Singh v. State of Haryana'A^.. Although in the said decision the Court did observe that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev S/ng/7 case4 is diluted but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away completely. The Court observed: (Karnail Singh case131, SCCp. 553,para31) "31. ... Through this amendment the strict procedural requirement as mandated by Baldev Singh case4 was avoided as relaxation and fixirig of the reasonable time to send the record to the .superior official as well as exercise of Section 100 CrPC was included by the legislature. The effect conferred upon the previously mandated . strict compliance with Section 50 by Baldev Singh case4 was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspecfs have been taken away completely but certain flexibility in the procedural norms wer6 adopted only to balance an urgent situation. As aconsequence the mandate given in Baldev Singh case4 is diluted." 27. It can, thus, be seen that apart from the fact that in Karnail S/ng/?13, 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 authorisation, the said decision does not.depart from the dictum laid down in Ba/cfev Singh case4 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 isconcerned. It is also plain from the said paragraph that ttie flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted toonly 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 authorised officer to send a copy of the reasons recqrded by him for his belief in terms of sub-section (5), t6 his immediate-superior officer, within the stipulated time, which exercjse would again be subjected to judicial scrutiny durirrg the course oftrial. 28. We shall now deahwith the two decisions, referred tojn the referral order,.wherein "substantial cpmpliance"with the requirement embodied in Sect]on,50 ofthe NDfS AQ{ has be'en held to be sufficient. In Frabha ShankarDubey^ a"towo-Judge Bencti of this Court cuHed out the ratio'of Baldev Sinah case4 on the j,ssue before us,as follows: {Prabha Sh'ankar Dubey case-^, SCC p. 64,para 11) . "11.... What the officer concerned is required to do is to convey about. the -choice the accused has. The accused (suseect)i has to be told in a way that he becomes aware fhat-the choice is his and not ofthe officer concerned, even though there is no specific form. The_use of theword 'right' at relevant places in the decision of Baldev Singh case' —% •\ \\ seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the 'suspect' at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it." However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at handand Joseph Femandez1 the Court chose to follow the views echoed in the latter case, wherein it was held that the searching officer's information to the suspect to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court indicated the reason for use of expression "substantial compliance" in the following words: {Prabha ShankarDubey case2, SCC p. 64, para 12) "12. The use ofthe expression 'substantial compliance' was made in the background that the searching officer had Section 50 in mind and it was unaided by theinterpretation placed on it by the Cpnstitution Bench in Baldev Singh case^. A line 6r a wgird in a judgment cannot be read in isolation or as if interpreting.a statutory provision, to impute a different meanmg t6 the observations." It is manifest from the afore-extracted paragraph that Joseph Femancfez1 does not notice the ratio_ of Baldev Singh4 ,and in Prabha Shankar Dubey2, Joseph Femancfez1 is follpwed ignoring the dictum laid down in Baldev Singh case4. 29. In view of the foregoi.ng 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 minimise the allegatioRS of planting or foisting of false cases by the law enforcennent agencies, it would be imperative on the part of the empowered officer to apprise the person Jntended to be searched of his right to be searched before a gazetted pfiicer or a Magistrate. We have no hesitation in holding ,/thaf insofar as the obligation of the authorised officerAnder sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure toxicomply with the provision would render the recovery of the illicit article suspectand vitiate the conviction if the same is recprded 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. 30. As observed in Presidential Poll, In re14:(SCC p.49, para T3). ~ - l!;i -^ "13. ... It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.'" 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 Femandez1 and Prabha Shankar Dubey2 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. 32. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in