Criminal Appeal (SJ) No.12 of 2010 Against the judgment of conviction dated 19.12.2009 and order of sentence dated 21.12.2009 passed by 6th Additional Sessions Judge, Motihari in N.D.P.S.Case No.61 of 2007. 1. NOOR JAHAN 2. NOOR NISHA-----------Appellants. Versus THE UNION OF INDIA---------------Respondent ------ For the appellant:- S/Sri D.K.Tandon & Ajeet Kumar,Advocates For the Union of India:- Sri Sahvind Kr. Sharma(C.G.C.) P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA Dharnidhar Jha,J. The two ladies appellants were put on trial by the learned 6th Additional Sessions Judge-cum-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 Rs.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 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 someone 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 3 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 K.Gs. 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 4 possession of appellant Noor Jahan and eight packets from the possession of appellant Noor Nisha containing a total weight of 8.5 K.Gs. of charas were recovered and, accordingly, the seizure memo was prepared. The witnesses, like, P.Ws.1 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 5 Court also, on the point as right from the case of State of Punjab Vrs. Baldev Singh reported in (1999)6 SCC 172 and also the case of Vijaysinh Chandubha Jadeja Vrs. State of Gujarat reported in 2011(1) PLJR (SC)100, 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 search either before a gazetted officer or before a Magistrate. What was further held in 2004 (2) SCC 56 Prabha Shankar Dubey Vrs. State of M.P. 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(Supra) has been quoted by the Constitution Bench in Vijaysinh Chandubha Jadeja case and that reads as under:- “What the officer concerned is required to do is to convey about the choice the accused has. The accused(suspect)has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word “right” at relevant places in the decision of Baldev Singh case 6 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.” 4. Thus, the above paragraph clearly brings out that in Baldev Singh the Supreme Court, might have used „inform‟ but to convey the mandatory duty of officers to perform, indeed Section 50 was creating a right of ones option of being searched. Thus, what this court finds in the present case is that in spite of having the prior information that the two appellants were carrying charas on or around their persons which fact was fully known to the officials of the Customs Department as is clearly evident from their own evidence, they simply entered into the bus and picked up the two ladies to bring them down, without ever pointing out to the ladies about their right of being searched after exercising their own options. 5. It is not that the non-compliance with the provisions of Section 50 will render the whole trial or the judgment illegal. The trial might be justified but what was held in Baldev Singh (Supra)as regards the effect of 7 non-compliance of Section 50 was that the whole evidence on the factum of recovery and seizure becomes inadmissible. It was modified further in Vijaysinh Chandubha Jadeja (Supra) by pointing that in fact the non-compliance with the provisions of Section 50 shall render the whole evidence and story of the prosecution regarding the search and recovery as also the seizure of the article suspect and that shall result in the accused being acquitted on account of the charges not being proved. 6. There is consistent evidence as I have just pointed out that P.W.7 searched the two ladies and the packets which were found around their bodies were brought out from concealment. Some of the witnesses said that the ladies themselves produced and handed over the packets to the team of Customs Officials and employees but some of them said that Sheela Devi(P.W.7) brought out packets of charas which were concealed by the two appellants about their bodies. There is no evidence that the customs officials even were taking care of pointing out to the ladies or to themselves as well, that there was a 8 provision under Section 50 of the N.D.P.S. Act which required its compliance strictly. 7. As regards some of the documents this court has clear opinion about them that those were subsequent creation. The documents, firstly, are not referred in the complaint petition as regards their contents because the documents, specially, the voluntarily statements of the two appellants Ext-4 and 4/1 contain specific statement that an option was given to the two appellants that if they were so wished they could be taken either to a gazetted officer or to a Magistrate for their personal searches. If this had been so there was no reason for the complainant P.W.1 who was filing his complaint petition on 12.11.2007, i.e., after about five months of the creation of Exts-4 and 4/1, to mention this important fact in the complaint petition that the two appellants were informed about their right and they were also given the option of being searched before a gazetted officer or a Magistrate. Likewise, while I was considering the contents of the interrogatory statements of the two appellants, which have been annexed as Annexures-7 and 7/1 and which 9 are part of the complaint petition, I find in reply to one of the questions, the appellants were stating in their interrogatory statements that the complainant and his team of customs officers was pointing out to the two ladies about the fall out of making such interrogatory statements in the light of Section 67 of the N.D.P.S. Act. This again appears a fabrication, definitely done after filing of the complaint petition because if they had stated those things on the day, i.e., on 25.07.2007, there was no reason for the complainant not to set down those important facts in his complaint petition so as to fortifying his case. Besides the above, the two interrogatory statements Exts-7 and 7/1 also make reference to the fact that the two appellants had been given option of being searched as per the provisions of Section 50. It has time and again been pointed out that the purpose of putting down some stricter safeguards as regards the compliance of the provisions of Section 50, is only to obviate fabrication of facts for false implication of innocent persons, because a person who is arrayed as an accused in a case under the Act 10 might be awarded as harsher a punishment as of not less than 10 years and also may be asked to cough up a fine of Rs.1,00,000/- in the minimum. If this could be the conduct of public servant, like, the officers of the Customs Department as appears in the present case, then the legislature shall have to make a re-look into the frame of the provisions as regards the safeguard to officers of the preventive or customs or other departments from being prosecuted on account of having fabricated false facts so as to implicating innocent persons. I cannot be sure that the recoveries were false but I am very much sure that the fabrication was as regards the documents Exts-4 and 7 series reasons for which I have just recorded I am also of the opinion that if, in fact, the recoveries were so huge as to be of 8.5 K.G. of charas which were being imported into Indian territory, then how was is that the officer in the rank of Sri K.K.Upadhyaya and Bal Krishna Choudhary overlooked to comply with as important provision as Section 50. I believe that either the officers were creating a case which could be false ultimately or they were fabricating 11 records for falsely implicating innocent persons so as to save some persons who were the real minds and hands behind the commissions of the offence. I would, as such, direct that a copy of this judgment be placed before the Ministry of Finance, Union of India or any other Ministry of the Government of India for holding an enquiry into the aspects of the case, I have just pointed out and initiate a proper proceedings against the officer either for the failure of bringing up the proper evidence by complying with the provisions or for fabricating records. 8. As regards the merit of the appeal it succeeds and the two appellants, namely, Noor Jahan and Noor Nisha are acquitted of the charges for which they were convicted. Both of them are in custody. They shall be released forthwith, if not wanted in any other case. Patna High Court, Dated, the 17th day of May, 2011, Brajesh Kumar/NAFR ( Dharnidhar Jha,J.)