Case: SK. RAJU @ ABDUL HAQUE @ JAGGA Vs. THE STATE OF WEST BENGAL

On 15 February 2014, the ASJ had convicted the appellant of an offence punishable under Section 20(b)(ii)(C) of the Act. The appellant was sentenced to 14 years of rigorous imprisonment and directed to pay a fine of Rs 1,40,000. 2 The facts of the case are as follows. On 15 November 2011, SubInspector Prasanta Kr. Das, Narcotics Cell, DDreceived information that a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic Garden Road, near Tiljala Police Station to supply narcotic drugs in the afternoon.sought permission from the Assistant Commissioner of Police,Department, DD to organize a raidPermission was granted by the superior officer on the same day and a raiding team consisting ofand others reached the spot at about 12.50 pm. At around 1.40 pm, the source of the information pointed out to the appellant who was coming along Picnic Garden Road. The appellant was intercepted and detained immediately by the raiding party in front of Falguni Club. The appellant was informed about the reasons for his detention and the identities of the raiding party were disclosed to him. Subsequently, the appellant also disclosed his identity to the raiding party.was one of the two independent witnesses who agreed to be a witness to this search. The appellant was informed about his legal right to be searched either in the presence of a magistrate or a gazetted officer (Exhibit3). The appellant opted for being searched by a gazetted officer. A gazetted officer, Inspector Joysurja Mukherjee (arrived on the scene at about3.20 pm. He provided the appellant with a ?second option?. The appellant was asked bywhether he wished to be searched in the presence of a gazetted officer or a magistrateOnce again, the appellant consented to be searched in the presence of a gazetted officer.then inquired of the appellant whether he wanted to searchbefore the latter would carry out his search. The appellant agreed to searchbefore his own search was carried out byNo narcotic substance was recovered from the person of2 recovered nineteen ?deep brown / blackish broken rectangular sheets? from a black polythene packet which was inside a biscuit colour jute bag, which the appellant was carrying in his right hand. The sheets were tested byon the spot with the help of a test kit. The substance was found to be charas. The substance was also weighed using a weighing scale. The appellant was found to be in possession of 1.5 kilograms of charas. Cash amounting to Rs. 2,400/was recovered from the trouser of the appellant. 3 Learned counsel for the appellant has argued that there was noncompliance with Section 42 of the Act. Afterwas intimated about the appellant?s arrival, hesought permission from the Assistant Commissioner of Police,Department. Upon receipt of the letter of permission from the Assistant Commissioner,proceeded to the place of the occurrence.admitted in histhat he was aware of the gravity of the need for compliance with Section 42. However, apart from a letter seeking permission to act on the information which was addressed to a superior officer, he did not (it was urged) diarise it elsewhere. Learned counsel urged that PW2 had not complied with the mandatory requirements of Section 42, as a result of which the trial stood vitiated. He has relied on the following decisions of this Court to buttress the submission: Abdul Rashid Ibrahim Mansuri v State of Gujarat ( ?Mansuri?), 1 Directorate of Revenue v Mohammed Nisar Holia ( ?Holia?) 2 and State of Rajasthan v Jagraj Singh ( ?Jagraj?). 3 4 Learned counsel for the appellant also submitted that Section 50 has also not been complied with. According to him, not only was the bag of the appellant searched, but a search of the person of the appellant also resulted in the recovery of cash in the amount of Rs. 2,400/from the left pocket of his trouser. Hence, it was urged by the learned counsel that though Section 50 was mandatorily required to be complied with, there was a breach of observance. Since the appellant was merely given an ‘option? byto be searched before a gazetted officer and was not informed that it was his legal right to be searched before a gazetted officer or a magistrate, the search was, it was urged, vitiated.

Court's reasoning:
On conducting the search, only personal belongings ofwere found by the appellant. On the search of the appellant in the presence of the gazetted officer, a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/cash in the denomination of 24 notes of Rs. 100/each was found in the left pocket of the appellant?s trouser. When the bag was opened, a black polythene cover containing nineteen rectangular broken sheets of a blackish / deep brown colour weighing 1.5 kilograms was recovered. The sheets were tested and were found to be charas.conducted a search of the bag of the appellant as well as of the appellant?s trousers. Therefore, the search conducted bywas not only of the bag which the appellant was carrying, but also of the appellant?s person. Since the search of the person of the appellant was also involved, Section 50 would be attracted in this case. Accordingly,was required to comply with the requirements of Section 50(1). As soon as the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative forto inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. Fromit can be discerned that the appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative.is a record of the events after the arrival ofon the scene. After the arrival ofthe appellant was once again asked by him,whether he wished to be searched in the presence of a gazetted officer or aThis was the second option which was presented to him. When he reiterated his desire to be searched before a gazetted officer,inquired of the appellant whether he wished to searchbefore his own search was conducted byThe appellant agreed to searchOnly the personal belongings ofwere found by the appellant. It was only after this that a search of the appellant was conducted and charas recovered. Before the appellant?s search was conducted, both PWon different occasions apprised the appellant of his legal right to be searched either in the presence of a gazetted officer or a magistrate. The options given by bothwere unambiguous. Merely because the appellant was given an option of searchingbefore the latter conducted his search, would not vitiate the search. In Parmanand, in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a ‘third? alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searchingin the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence ofa gazetted officer, in consonance with the voluntary communication made by the appellant to both4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh. 12 As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Section 50 was complied with.