[2008] 13 S.C.R. 955

MAN BAHADUR

STATE OF H.P. (Criminal Appeal No. 1513 of 2008)

SEPTEMBR 23, 2008

[S.8. SINHA AND CYRIAC JOSEPH, JJ]

Narcotic Drugs and Psychotropic Substances Act, 1985:

s. 50 - Search of person - Right to be searched before a Gazetted Officer or a Magistrate - HELD: In the instant case, C search memo or any other document do not show that the suspect was made aware of his right to be searched before a Gazetted Officer or a Magistrate - I. 0. had merely given an option to the suspect to be searched either by himself or in presence of a Magistrate or a Gazetted Officer - No evidence D has been adduced to show that suspect was communicated of his right either to be searched in presence of a Magistrate or a Gazetted Officer on the one hand and by an empowered officer on the other-There has been even no substantial compliance of s.50 - Conviction and sentence set aside.

State of Punjab vs. Baldev Singh 1999(3) SCR 977=

(1999) 6 SCC 172; Vjaysinh Chandubha Jadeja vs. State of Gujarat 2007 (1) SCC 433; and Noor Aga vs. State of Punjab and Anr. [2008] 10 SCR 379=2008 (9) SCALE 681 - relied on.

Miranda vs. Arizona 384 US 436 - referred to.

Case Law Reference

1999(3) SCR 977 relied on para 2

354 us 436 referred to para 2

2001 (1 l sec 433 relied on para 3

[2008] 10 SCR 379 relied on para 8

SUPREME COURT REPORTS


..\

A CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1513 of2008

From the final Judgment and Order dated 20.12.2005 of the High Court of Himachal Pradesh at Shimla in Crl. A. No. 337 of 2003 B Radha Shyam Jena for the Appellant.

Naresh K. Sharma for the Respondent.

The following Order of the Court was delivered c Delay condoned.

Leave granted.

1. One of the questions which arises for consideration in

D this appeal is as to whether Shri Lal Chand No. 8 1.0.

P.P.Pandoh(P.W.10) was bound to make the accused-appellant aware that he had also a right to be searched before a Magistrate or a gazetted Officer.

2. In State of Punjab Vs. Baldev Singh -(1999) 6 SCC 172, E a Constitution Bench of this Court has clearly held that the accused has a right to be made aware thereof. Having regard to the Miranda clause as enunciated by the Supreme Court of the United States of America in Miranda Vs. Arizona-384 US 436, the Constitution Bench held that, although.such communication

F itself may not necessarily be made in writing but as far as pos- ,,. ... sible suc:h communication should be made in the presence of some independent and respectable persons witnessing the arrest and search.

It was opined: G "57 On the basis of the reasoning and discussion above, the following conclusions arise:

(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search H a person, it is imperative for him to inform the person

concerned of his right under sub-section (1) of A Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

-i (2) That failure to inform the person concerned about 8

the existence of his right to be searched before a gazetted officer or Magistrate would cause prejudice to an accused."

3. A three-Judge Bench of this Court in Vijaysinh c Chandubha Jadeja Vs. State of Gujarat - (2007) 1 SCC 433 noticed the aforementioned dicta laid by the Constitution Bench in Baldev Singh(Supra) and in no uncertain terms opined that the accused must be told of his right to be searched before a gazetted officer or a Magistrate.

D -f

4. The Bench, however, was of the opinion that some more clarification is necessary as to whether such communication of the right of the accused could be taken in evidence by way of oral evidence of the officer concerned.

5. In this case it is accepted at the Bar that the search E

memo or any other document do not show that the appellant was made aware of his right to be searched before a gazetted officer or a Magistrate.

6. From the deposition of P.W.10-1.0.P.P. Pandoh, it ap- F pears that he had merely given an option to the appellant to be -searched either by himself or in presence of a Magistrate or a gazetted Officer.

7. No evidence has been adduced to show that the appellant was communicated of his right either to be searched in pres- G ence of a Magistrate or a gazetted officer on the one hand and by an empowered officer on the other.

8. Recently, this Court in Noor Aga Vs. State of Punjab and Anr.- 2008(9) SCALE 681, categorically, held that as the H

958 SUPREME cou'RT REPORTS


A provisions contained in the N.D.P.S.Act are penal in nature, all

requirements laid down therein must be complied with strictly, stating:

" 149. Section 50 of the Act provides for an option to be given. This Court in Baldev Singh(supra) quoted with approval the decision of the Supreme Court of United States in Miranda Vs. Arizona [(1966) 384 US 436} in the following terms:

"The Latin maxim salus populi suprema lex ( the safety of the people is the supreme law) and salus republicae suprema lex(safety of the State is the supreme law) coexist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be right, just and fair."

150. Justness and fairness of a trial is also implicit in Article 21 of the Constitution.

151. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial.

152. The courts, in order to do justice between the parties, must examine the materials brought on record in each case' on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal principles governing the same; wherefor the provisions of the Code of Criminal Procedure and Evidence Act must be followed.

153. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question.

154. Article 12 of the Universal Declaration of Human

Rights provides for the Rightto a fair trial. Such rights are

A . enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land.

155. It is one thing to say that even applying the well known 8

principles of law, they are found to be guilty of commission of offfences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience of otherwise." C

9. In the instant case, there has been even no substantial compliance of Section 50 of the N.D.P.S. Act.

10. For the reasons aforementioned, the impugned judgment of conviction and sentence cannot be upheld. It is set aside D accordingly. The appeal is allowed.

11. Appellant is in custody. He shall be released forthwith unless required in connection with some other case.

R.P.

Appeal allowed.