IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 194 of 2003 Decided on: 29.11.2011 State of H.P. …Appellant. Versus Baldev Singh …Respondent. Coram The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting?1 No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. G.K. Nadda, Advocate, vice Mr. Dharam Vir Sharma, Advocate. Deepak Gupta, J.(Oral) This appeal by the State is directed against the judgment dated 01.01.2003, passed by the learned Sessions Judge, Hamirpur, in Sessions Trial No. 1 of 2002, whereby he acquitted the accused of having committed an offence punishable under Section 20 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act). 2. Briefly stated, the facts of the case are that on 29th September, 2001, PW-9, Inspector Hukam Chand alongwith ASI Raj Kumar, HHC Ram Chand, PW-8, Desh Raj, PW-6, HHC Phula Singh and Constable Madan Lal had gone on patrolling duty. 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. -: 2 :- When they were at Patta, PW-9 received secret information that the accused Baldev Singh was indulging in the sale of charas. On receipt of the information, PW-9 recorded the same and sent the information through PW-8 to the Superintendent of Police, Hamirpur by writing, a photo copy of which is Ex. PW-9/A. 3. Thereafter this witness went to village Jharlog to the shop of the accused where independent witnesses, PW-1, Satya Devi and PW-2 Mansa Ram, were associated with the search. According to PW-9, accused was apprised vide memo Ex. PW-1/A that it was intended to search him and, therefore, he may give his option as to whether he wants to give search before a Magistrate or some Gazetted Officer. The accused allegedly consented to be searched before a Gazetted Officer and, therefore, PW-9 telephonically informed Additional SP, Jagdish Sharma (PW-3) and requested him to come to the spot. The accused in the meanwhile was kept under the supervision of the police officials. After PW-3 came, he searched the shop and the accused and also conducted personal search of the accused. Nothing was recovered from the search of the shop, but on search of the accused, 100 gms of charas hidden in the sock, which the accused was wearing on his left foot, was recovered. Out of the recovered charas, two samples of 25 gms. each were taken and thereafter, the two samples as well as the remaining bulk charas were sealed in three separate parcels with seal ‘K’, which were taken in the possession vide memo Ex. PW-1/C. The socks worn by the accused were taken in possession vide memo Ex. PW-1/D. PW-9 thereafter prepared Rukka, Ex. -: 3 :- PW-6/A and sent the same through HHC Desh Raj to P.S. Bhoranj on the basis of which FIR, Ex. PW-6/B was registered. NCB Form was filled in on the spot and after completing other codal formalities on the spot, the case property was deposited with MHC Desh Raj, PW-6, who kept it into the Malkhana. One sample was sent to CTL Kandaghat and as per the report of the Chemical Analyst, Ex. PW-9/H, the sample was found to be that of charas. On this basis, the accused was challaned. The accused was acquitted by the learned trial Court and hence, this appeal by the State. 4. As far as the independent witnesses are concerned, they both turned hostile and did not support the prosecution at all. According to them, nothing was recovered in their presence. There are also certain contradictions in the statements of the official witnesses. It appears that after PW-3 arrived at the spot, he again asked the accused whether he was willing to be searched before him. At this time, the only option given to the accused was that whether he was willing to get himself and his shop searched by PW-3 vide Ex. PW-1/B. At this stage, the accused was not informed that he had a legal right to be got searched before a Magistrate. Neither PW-9 nor PW-3 ever informed the accused that he had a legal right to got himself searched before the Magistrate. 5. This is admittedly a case of recovery of charas on account of personal search of the accused and, therefore, Section 50 of the NDPS Act would definitely apply. The question whether the accused must be informed that he has a legal right to be -: 4 :- searched before a Magistrate or Gazetted Officer and the effect of non-compliance thereof is no longer res integra. 6. 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 -: 5 :- 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.” -: 6 :- 7. In the present case, PW-9 and PW-3 have stated that the accused was informed that he had a legal right to be searched before the Magistrate. Merely giving an option but not informing him about his legal right was not sufficient compliance of Section 50 of the NDPS Act, which is mandatory. Therefore, on this ground alone the appeal has to be rejected. We find no merit in this appeal, which is accordingly dismissed. Bail bonds discharged. (Deepak Gupta) Judge (V.K. Ahuja) Judge November 29, 2011 (rajni)