1 Criminal Appeal (SJ) No.4 OF 2009 - - - - Against the judgment of conviction dated 22.11.2008 and order of sentence dated 28.11.2008 passed by Ist Additional Sessions Judge-cum- Special Judge, Kaimur,Bhabhua in Trial No. 17 of 2006 arising out of Bhabhua P.S.Case No. 63 of 2006 under Section 21(b) and 27 of the N.D.P.S.Act. - - - - BIGAU GOND, son of Mahendra Gond, resident of Village Akhalashpur, P.S.Bhabhua, District Kaimoor … … Appellant Versus THE STATE OF BIHAR … … Respondent For the appellant: Shri Krishna Pd.Singh, Sr.Adv. Shri Bhaskar Shankar,Adv. Shri Manish Kumar-3, Adv. For the State: Shri S.N.Prasad, A.P.P. - - - - P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- The solitary appellant was charged under Sections 21(b) and 27 of the Narcotic Drugs and Psychotropic Substances Act on Trial No.17 of 2006 arising out of Bhabhua P.S.Case No.63 of 2006 by the learned Ist Additional Sessions Judge, Kaimur at Bhabhua. By judgment dated 22.11.2008 the appellant was found guilty of committing the said offences and after hearing under Section 235 Cr. P.C. on 28.11.2008, the appellant was directed to undergo rigorous imprisonment for eight years as also to pay a fine of rupees forty thousand and in case of default in paying the fine, he was further directed to suffer rigorous imprisonment for an 2 additional period of one and half years. The appellant has preferred the present appeal to question the orders of conviction and sentence passed upon him by the learned trial Judge. 2. The basis of the prosecution case is the recorded statement(Ext.2) of P.W. 5 Pankaj Kumar Das, who was the Officer-in-charge of Bhabhua Police Station. He stated that he received an information that two persons were selling heroin near the shop of one Khedan Sah. He informed his Senior Police Officers by telephone and requested for deputation of a Magistrate for the purpose. Shri Jai Narain Jha, L.R.D.C.,Bhabhua( not examined) was deputed to accompany the raiding team formed by P.W. 5 and, accordingly, P.W. 5 along with L.R.D.C., Bhabhua came to Durga Talkies situated at Bhabhua-Chainpur Road and put themselves on an ambush. The informant stated that on making search of the persons who were allegedly selling something, he found a man moving fast towards Chainpur road. He was signaled to stop who started running to go into the orchard situated by the side of Petrol Pump. But, he was chased by the policemen and was captured. The other person jumped into the river and, thereby, succeeded in fleeing away. 3 3. The arrested person was questioned and he was found to be the present appellant and thereafter the Police Officer, P.W. 5 pointed out to the appellant that he was being accompanied by a Magistrate and that the appellant was to be searched in his presence to which the appellant readily agreed. In presence of Sheopujan Mishra (not examined) and Ghanshyam Prasad( not examined) the appellant was searched and found carrying a packet under his garment around his waist which was found containing some powdery substance which was suspected by the police to be heroin. 4. The informant stated that he brought the weighing equipment as also the weights and weighed the substance which was pointed out by the appellant to be heroin. He also brought a test kit and found that it was heroin and it was weighing 80 grams. The recovery was made and the same was seized by preparing seizure memo Ext.1. Thereafter, the seized article was sealed in a container in presence of two witnesses and some part of it was again sealed which was dispatched to the Forensic Science Laboratory and the report of the Forensic Science Laboratory dated 8.6.2007 was received and it appeared from that report Ext. 5 that the seized article was heroin. 4 5. On the basis of the statement of P.W. 5, the F.I.R. of the case was drawn up and the investigation was handed over to P.W. 6 S.I. Hari Mohan Kumar. P.W.6 inspected the place of occurrence, examined the witnesses and thereafter sent the seized sampled article for chemical analysis to the Forensic Science Laboratory. Finding material sufficient, he sent the appellant up for trial which ended in his conviction and sentence as indicated at the very out set of the present judgment. 6. Shri Krishna Prasad Sigh, learned Senior counsel appearing on behalf of the appellant submitted that the most material defect in the prosecution case was the non-compliance of Section 50 of the N.D.P.S. Act and on that score alone the conviction and sentence passed upon the appellant could not be sustained. It was further contended that In view of Section 50 of the N.D.P.S.Act a person who had been arrested has to be searched either before a Gazetted Officer or a Magistrate and the evidence on record indicates that the appellant was pointed out that the L.R.D.C. was the Magistrate, as such, he could have been misled whereas the L.R.D.C. was a Magistrate or not as per the definition of the term and, as such, the 5 very prosecution case appears completely in contravention of Section 50. 7. The learned A.P.P. submitted that it was a case of prior information and the F.I.R. itself indicates that the present appellant was informed that the L.R.D.C. was the Magistrate and he had to be searched before him to which he readily agreed and, as such, it could be futile to submit that Section 50 of the N.D.P.S.Act was not complied with. 8. The requirement of complying with the provision of the N.D.P.S. Act has been considered time and again by the Supreme Court right from the decision of the Supreme Court reported in (1999) 6 SCC 172 State of Punjab Vs. Baldev Singh. All the decisions of the Supreme Court were again considered recently in the case of State of Gujarat Vs. Vijay Singh Chandubhai Jadeja reported in 2011(1) P.L.J.R. 100(SC). On reappraisal of the decisions of the Supreme Court, the latest Constitution Bench Court in Vijay Singh Chandubhai Jadeja(Supra) took the similar view that Section 50 of the N.D.P.S.Act creates a right in the accused to be informed and an obligation in the authority to conduct a raid or search of the person of an accused after informing such person 6 of his right. If the arrested person whose person has been searched has not been informed then it could be the complete non-compliance of the provision of Section 50 of the N.D.P.S.Act and that could make the whole claim of the prosecution on search and recovery of any narcotic drugs and substance suspect. The relevant part of sub- section (1) of Section 50 of the N.D.P.S.Act is as under: “ 50(1) When any Officer duly authorized under section 42 is about to search any person under the provisions of section 41,42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.” It may be found that the provision of Section 50 creates a right into that person of exercising his option of being searched either before a Gazetted Officer or before a Magistrate. So as to making that right available to the person the obligation rests upon the authorised Officer under Section 50 that he duly informs him about the right existing under the statute. So it could not be a mere formality that the arrested person has to be informed. The underlying rationale behind the requirement of informing such person is to allow him to exercise his option of being searched. It may not be a mere formality. It is 7 the requirement of law which creates the right in an accused to exercise his option of being searched as per Section 50 which has to be validly complied with. 9. The learned A.P.P. was taking me to the part of the F.I.R. which reads on being translated into English that “the appellant was informed that the informant had a Magistrate available with him and his person will be searched in his presence”. By the above statement what the informant was doing was simply to point out about the impending search of the person in presence of a Magistrate, the informant was not informing the appellant about his statutory right of exercising his option of getting himself searched as is required by Section 50 either before the Magistrate or a Gazetted Officer. The informant(P.W.5) was not informing the appellant about his statutory right, rather was dictating with him that he was to be searched in presence of the Officer whom he had brought with him. In my view, the option to be searched either before a Magistrate or a Gazetted Officer being of the accused he could very well refuse to be searched before any particular Officer or Magistrate to whom he if taken by the authorized Officer and may, in that case also, exercise his 8 own option of choosing a suitable Magistrate or Officer. 10. When one considers the evidence of P.W. 5, the informant, one could find that there is no whisper in his evidence that he even made that statement which he had made in the F.I.R. to the present appellant that the accompanying L.R.D.C. was the Magistrate before whom the appellant was to be searched. There is no statement in his evidence to that effect. There is no further statement in the deposition of P.W. 5 that he had even offered the appellant of being searched either before a Gazetted Officer or a Magistrate. P.W. 5 has stated that after arresting the appellant he searched him and recovered the heroin like substance which was weighed and kit tested and found to be the substance of heroin. If this could be the evidence of P.W. 5 then the Court has to accept the contention of learned counsel appearing for the appellant that right of the appellant of being informed of exercising his option of getting himself searched either before a Magistrate or a Gazetted Officer has been snatched from him and that unfailingly creates a serious doubt in the veracity of the prosecution case as regards search and recovery of heroin. 9 11. The evidence of other witnesses is also on the same line. They have stated that they were the members of the raiding group of the police officers who had been assembled by P.W. 5 and were taken to Durga Cinema where the appellant was captured and he was searched and some heroin like substance was recovered. They have also stated the same fact that they were being accompanied by L.R.D.C. Shri Jai Narayan Jha. The contention of the counsel for the appellant is that the L.R.D.C. may be a Gazetted Officer but he was not a Magistrate, so mere statement of the witnesses that they were having a Magistrate with them is clearly not in consonance also of Section 50 of the Act. 12. Section 2(xxix) of the N.D.P.S.Act reads as under: “Words and expressions used herein and not defined but defined in the Code of Criminal Procedure, 1973 have the meanings respectively assigned to them in that Code.” Section 50 of the N.D.P.S.Act reads the words Gazetted Officer or Magistrate. As regards the meaning of those words and the contention was that the L.R.D.C. is not the Magistrate and that particular word which has been used in Section 50 or anywhere in the N.D.P.S.Act was carrying the 10 connotation or its meaning as per its definition or connotations contained in the Cr. P.C. The Code of Criminal Procedure, 1973 also does not define the word „Magistrate‟ but by virtue of Section 3, it explains the meaning of the term while clarifying the construction of various words referred to in the Cr. P.C., Sub-section (1) of Section 3 reads as under: “3. Construction of references-(1) In this Code:- (a) Any reference, without any qualifying words, to a Magistrate shall be construed, unless the context otherwise requires- (i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate; (ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate; (b) any reference to a Magistrate of the second class shall, in relation to an area outside a metropolitan area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a metropolitan area, as a reference to a Metropolitan Magistrate; (c) any reference to a Magistrate of the first class shall,- (i) in relation to a metropolitan area be construed as a reference to a Metropolitan Magistrate exercising jurisdiction in that area; (ii) in relation to any other area, be construed as a reference to a Judicial Magistrate of the first class exercising jurisdiction in that area; (d) any reference to the Chief Judicial Magistrate, shall, in relation to a metropolitan area, 11 be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area.” On perusal of the above construction of the term „Magistrate‟, read with Section 2(XXIX) of the N.D.P.S. Act, what appears is that wherever the term „Magistrate‟ has appeared in the N.D.P.S.Act, we have always to construe that word to mean „Judicial Magistrate‟. If this could be the meaning as has been pointed out by the Cr. P.C. under Section 3(1), then the word ‟Magistrate‟, which appears anywhere in the N.D.P.S.Act, specially in Section 50 has always to be referred to as the Judicial Magistrate. The Land Reforms Deputy Collector (LRDC), without being said much about it, could never be said to be a Judicial Magistrate. Even accepting the evidence put forward by the witnesses in their statement, though the same has not been supported by them in their evidence, the L.R.D.C. could never mean or could never be acknowledged as a judicial Magistrate and on looking at things from that angle what I find is that there was completely no compliance of Section 50 of the N.D.P.S.Act. 13. I do not want to go further into other aspects solely on appreciation of the fact. On 12 consideration of the arguments of the learned counsel for the parties, I do not have any hesitation in holding that the conviction and sentence of the appellant suffers from the vice of not complying with the provision of Section 50 of the N.D.P.S.Act which definitely entitles the appellant to an order of acquittal. 14. In the result, the appeal is allowed. The judgment of conviction and order of sentence passed against the appellant are hereby set aside and he is acquitted. 15. The appellant is in custody. He shall be released forthwith, if not wanted in any other case. ( Dharnidhar Jha, J.) Patna High Court The 4th May, 2011 Kanth/A.F.R.