IN THE HIGH COURT OF JUDICATURE AT PATNA CR. W.J.C NO.520 OF 2009 KUSUMUDDIN @ MANTU, SON OF RAHMAT ALI, RESIDENT OF VILLAGE CHAPUR, P.S. CHAKULIA IN THE DISTRICT OF UTTER DINAJPUR (WEST BENGAL)………………...…………PETITIONER VERSUS 1. THE STATE OF BIHAR THROUGH THE SUPERINTENDENT OF POLICE, KISHANGANJ 2. PANKAJ DANGWAL, SON OF SHAKDITDHAR DANGWAL, ASSISTANT COMMANDANT, E.COMP. S.S.B. CAMP, DIGHAL BANK P.S. DIGHAL BANK IN THE DISTRICT KISHANGAJ. PERMANENT ADDRESS RESIDENT OF VILLAGE + P.O. NARENDRA NAGAR, P.S. NARENDRA NAGAR, DISTRICT TIHARI (UTTRAKHAND)……………………………….……………….RESPONDENTS *** FOR THE PETITIONER: M/S AKHILESHWAR PRASAD SINGH & RAJ KUMAR, ADVOCATES FOR THE STATE : MR. P.K.VERMA, AC. TO SC. NO.X *** P R E S E N T THE HON’BLE MR. JUSTICE JAYANANDAN SINGH O R D E R Jayanandan Singh, J. Heard learned counsel for the petitioner and learned counsel for the State. 2. Petitioner has filed this writ application for quashing of the first information report bearing Dighal Bank P.S. Case No.30/09 (Special Case No.7/09) registered under Sections 17, 18, 21, 22, 23 and 24 of the Narcotic Drugs & Psychotropic Substances Act (in short, “the Act”) on the basis of a written report of one Pankaj Dangwal, Assistant Commandant, E. Camp. SSB Camp, Dighal Bank in Kishanganj. - 2 - 3. Learned counsel for the petitioner has raised a pure legal issue. He submits that under the Act, the very recovery of a narcotic drug or psychotropic substance from a suspect puts burden of proof of his innocence upon the said suspect. Under the Act, elaborate procedure for search and seizure of a suspect has been laid down in Section 50 and for the sanctity of fair search and seizure of an accused, provisions as laid down in Section 50 of the Act have to be strictly followed. He submits that the Legislature has laid down this provision with regard to manner of search and seizure under Section 50 of the Act in mandatory terms and the failure to comply with the same would straightway vitiate his conviction and sentence. 4. Learned counsel for the petitioner submits that in a catena of decisions it has been held by the Apex Court as well as by various High Courts including this Court that the provisions of Section 50 of the Act are mandatory. Therefore, when a suspect is about to be searched by an authorized officer, an option has to be given to him as to whether he intends to get searched in presence of a Gazetted Officer or a Magistrate or - 3 - not. In case the suspect so desires, it is mandatory for the said officer to take him to a Gazetted Officer or a Magistrate and only in presence of the said Gazetted Officer or Magistrate, as the case may be, and on his direction in terms of sub-section (3) of Section 50, a suspect is to be searched. He submits that only exception to the said mandatory provision is laid down in sub-section (5) of Section 50 of the Act wherein it has been laid down that if the authorized officer does not find it possible to take the suspect for search to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance he can proceed with search as per section 100 of Code of Criminal Procedure, 1973. 5. Learned counsel for the petitioner submits that from the first information report itself it appears that when the petitioner was apprehended, he disclosed his name and expressed his desire to get himself searched before a Gazetted Officer. In spite of such desire expressed by the petitioner, he was not taken to the nearest Gazetted Officer or a Magistrate and was searched - 4 - by the Assistant Commandant himself i.e. the informant and one pound of brown sugar was recovered from his possession. He submits that, there is nothing in the F.I.R. to show that the officer had invoked his powers as laid down in sub- section (5) of Section 50 and submits that search and seizure was made by the informant in utter violation of the provisions of Section 50 of the Act. He submits that on account of this violation, entire claim with regard to search and seizure and recovery from the possession of the petitioner stands vitiated and, therefore, no prosecution can be launched against the petitioner on the basis of such search and seizure. In support of his contention, learned counsel for the petitioner has referred to a number of judgments of the Apex Court delivered in the case of State of Punjab Versus Balbir Singh, (1994) 3 Supreme Court Cases 299; in the case of Saiyad Mohd. Saiyad Umar Saiyad Versus State of Gujarat, (1995) 3 Supreme Court Cases 610; in the case of State of H.P. Versus Pirthi Chand, (1996) 2 Supreme Court Cases 37; in the case of T. Hamza Versus State of Kerala, (2000) 1 Supreme Court Cases 300 and in the case of Ahmed Versus State of Gujarat, (2000) 7 Supreme Court Cases 477. - 5 - He submits that it has been consistently held that in case of violation of the provisions of Section 50 of the Act in a search and seizure, no conviction can be held and the entire prosecution fails. In particular, he has referred to the case of Ahmed (supra) in detail to submit that, even if the authorized officer, who apprehends the accused, is a Gazetted Officer, the option to get searched in presence of another Gazetted Officer or a Magistrate has to be furnished to the suspect and if he desires so, he has to be taken to the nearest Gazetted Officer or a Magistrate and can be searched only on their directions. In this connection, he has referred to paragraph 4 of the judgment and in particular, the following observations made by the Court :- “……The question for consideration, therefore, is whether when a search is made by a gazetted officer, is it obligatory for the prosecution to inform the accused of his right to be searched before a gazetted officer or before a Magistrate, as provided under Section 50 of the Act. According to the learned counsel for the respondent, it is only when a search is made by an authorized officer under Section 41 (2) of the Act, it is only then the provisions of Section 50 can be attracted but when a search is made by an officer of gazetted rank of the department of Central Excise, who is empowered under sub-section (2) of Section 41, then the provisions of Section 50 are not required to be - 6 - complied with inasmuch as the empowered officer himself is a gazetted officer. According to the learned counsel for the appellant-accused, however the provisions of Section 50 are required to be complied with irrespective of the fact whether the search is being made by the empowered officer, who may be an officer of the gazetted rank or by an officer duly authorized by the empowered officer under Section 42 of the Act. To ensure fairness in the search itself and for compliance with Section 50 of the Act, no differentiation can be made whether the search is being made by the empowered officer, who obviously is an officer of a gazetted rank or the authorized officer, who may be a subordinate officer to whom the empowered officer authorizes……………………” xxx xxx xxx xxx “A combined reading of the provisions of Section 42 and Section 50 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 a infraction of the requirements of the provisions of Section 50, which would ultimately vitiate the conviction. For the purpose of complying with the provisions of Section 50, no differentiation can be made on a plain reading of the language used in Section 50, depending upon the officer who is going to search the person concerned. In our considered opinion, since the search is about to be effected on the basis of any prior information or personal knowledge, which the person going to search has the reasons to believe that an offence under the Act is being committed, then for the sanctity of the search itself, - 7 - 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 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 50 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 NDPS Act, namely, the shifting of the onus to the accused and the severe punishment to which he becomes liable……” 6. Learned counsel for the respondents accepts that the provisions of Section 50 of the Act have been consistently held to be mandatory and also accepts that it has also been consistently held that infraction of the same vitiates the conviction and sentence. However, he submits that the cases relied upon by learned counsel for the petitioner are all where the order of conviction and sentence passed after conclusion of trial was under challenge on the ground of infraction of Section 50 of the Act and conviction and sentence was set aside on that ground. He submits that the petitioner has challenged the first information report in this case itself and as per counter - 8 - affidavit, after investigation charge sheet has been submitted in the case as the witnesses have supported search and seizure and recovery. 7. It may be true that the cases relied upon by learned counsel for the petitioner are all where conviction and sentence in trial was challenged and the same was set aside by the courts on the ground of infraction of provisions of Section 50 of the Customs Act. But no judgment has been cited by learned counsel for the respondents to show that in spite of infraction of mandatory provisions of Section 50 of the Act, interference was refused by a Court on the ground that challenge had been raised by an accused in this respect at the initial stage of prosecution itself. The attention of this Court has also not been drawn to any case in which it may have been held that this issue has to be raised and considered by the trial court itself first at the stage of trial. 8. Learned counsel for the respondents has vehemently argued that since the Assistant Commandant of the S.S.B, who had apprehended petitioner and held search and seizure, was himself a Gazetted Officer, requirements of Section 50 of the Act were substantially complied with and, - 9 - therefore, there was no requirement for giving any opportunity to the petitioner to opt for his search before any other Gazetted Officer or Magistrate. 9. This submission of the learned counsel for the State already stands clearly negatived by the observations of the Apex Court, as quoted hereinabove. The Apex Court has clearly held that even if the officer, who apprehended the suspect, was himself a Gazetted Officer, suspect had to be taken to another Gazetted Officer or a Magistrate if he opted for the same. 10. In this case it is recorded in the first information report that the petitioner had opted for his search before a Gazetted Officer. In view of the observations of the Apex Court, as quoted above, the informant i.e. Assistant Commandant, S.S.B. had no option but to take petitioner to a Gazetted Officer for his search, recovery and seizure. This infraction goes to the root of the matter as consistently held by the Apex Court. Therefore, this Court does not find it expedient to allow the prosecution to continue leading to the conviction and sentence of the petitioner only to be set aside on the ground of the said infraction thereafter. If this application - 10 - is not allowed, this will lead to unnecessary harassment to the petitioner and wastage of time and energy and public money and precious time of the Court for no useful purpose. 11. In the circumstances, this Court is of the opinion that since it is demonstratably established that there is violation of the mandatory provisions of Section 50 of the Act in holding search and seizure from the possession of the petitioner, the first information report and charge sheet submitted against the petitioner should be quashed. 12. In the result, this writ application is allowed. The first information report and charge sheet submitted against the petitioner in connection with Dighal Bank P.S. Case No.30/09 (Special Case No.7/09) are quashed. (Jayanandan Singh, J.) Patna High Court, Patna The 13th April, 2010 A.F.R. (B.T.)