[2010] 13 (ADDL.) S.C.R. 255

VIJAYSINH CHANDUBHA JADEJA v.

STATE OF GUJARAT (Criminal Appeal No. 943 of 2005)

OCTOBER 29, 2010

[D.K. JAIN, B. SUDERSHAN REDDY, DR.

MUKUNDAKAM SHARMA; R.M. LODHA AND DEEPAK

VERMA, JJ.]

Narcotic Drugs and Psychotropic Substances Act, 1985: C

Section 50 - Search of persons (suspects) - Requirements - Expression "if the person to be searched so requires" - Scope of - HELD: Obligation of the authorised officer under sub-s.(1) of s.50 is mandfjtory and requires a 0 strict compliance - The mandate of s. 50 is precise and clear

- If the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so - The insertion of sub- E ss. (5) and (6) does not obliterate the mandate of sub-s.(1) to inform the person to be searched of his right to be taken before a gazetted officer or Magistrate -Though s.50 gives an option to the empowered officer to take the suspect either before the nearest gazetted officer or the magistrate, but in F order to impart authenticity, transparency and credit worthiness to the entire proceedings, in the first instance, an endeavour should be made to produce the suspect before the nearest Magistrate.

Section 50 - Object of - Explained.

A Bench of three Judges of the Supreme Court before which the instant appeals were listed for hearing,

A felt that there was divergence of opinion as regards the dictum laid down by the Constitution Bench of the Court in Baldev Singh's case1• The appeal was, therefore, referred to the Constitution Bench. The question for consideration before the Court was: "whether Section 50 B of the Narcotic Drugs and Psychotropic Substances Act, 1985 casts a duty on the empowered officer to 'inform' the suspect of his right to be searched in the presenc:e of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether c the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?"

Answering the reference, the Court

HELD: 1.1 In order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the Legislature have to be observed strictly. [para 12] [269-

A-B]

1.2 The issue before the Court in terms of the referral order is not about the applicability of s.50 of the NDPS Act per se but is confined to the scope and width of the expression "if the person to be searched so requires" as figuring in sub-s. (1) of the said Section. However, it may be seen that while considering the question of compliance with s. 50 of the NDPS Act, the Constitution Bench in Baldev Singh considered the provisions of s. 41 as well. [para 16] [271-G-H; 272-A-B]

1.3 The object with which the right u/s 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations

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

VIJAYSINH CHANDUBHA JADEJA v. STATE OF 257

GUJARAT

of planting or foisting of false cases by the law A enforcement agencies, it would be imperative on the part of the empowered officer to apprise the suspect of his right to be searched before a gazetted officer or a Magistrate. In so far as the obligation of the authorised officer under sub-s. (1) of s. 50 is concerned, it is B mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such c search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. [para 22] [278-8-E]

Re: Presidential Poll 1975 (1) SCR 504 = 1974 (2) SCC 33 - referred to.

1.4 Section 50 prescribes the conditions under which personal search of a person is required to be conducted.

Sub-s. (1) of the said Section provides that when the empowered officer is about to search any suspect, he E shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-s.(2), it is laid down that if such request is made by the suspect, the officer who is to take the search, may detain the suspect until he can be F brought before such gazetted officer or the Magistrate.

The mandate of s.50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the G gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so. [para 14-15] [270-

A-B; 271-B-F]

1.5 Although the Constitution Bench in Baldev Singh did not decide in absolute terms the question whether or H

A not s. 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-s. (1) of s. 50 make it imperative for the empowered officer to "inform" the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a s gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted o.ffi<; er or a Magistrate, may not vitiate the trial but would render the c recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a search conducted in violation of the provisions

0 of s. 50. The Court also noted that it was not necessary that the information required to be given u/s 50 should be in a prescribed form or in writing but it was mandatory that the suspect was made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him. The Court concurred E with the conclusions. Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce. [para 18] [274-0-H; 275-A]

State of Punjab vs. Baldev Singh 1999 (3) SCR 977 = F 1999 (6) sec 172 - explained and relied on.

1.6 Sub-ss. (5) and (6) were inserted ins. 50 by Act 9 of 2001. It is pertinent to note that although by t, he insertion of the said two sub-sections, the rigour of strict G procedural requirement is sought to be diluted under the circumstances mentioned in the sub-sections, viz.-when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance etc., or article - H

VIJAYSINH CHANDUBHA JADEJA v. STATE OF 259

GUJARAT

or document, he may proceed to search the person A instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases, a safeguard against any arbitrary use of power has been provided under sub-s.(6), viz. the empowered officer is obliged to send a copy of the reasons, so recorded, to his immediate B official superior within seventy two hours of the search.

The insertion of these two sub-sections does not

obliterate the mandate of sub-s. (1) of s.50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate. [para 19] [275-8-F] c

1.7 The object and the effect of insertion of sub-ss.

(5) and (6) were considered by another Constitution Bench of this Court in KamaH Singh**. Although in the said decision the Court did observe that by virtue of insertion of sub-ss. (5) and (6), the mandate given in D Baldev Singh's case is diluted, but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away completely. [para 19] [275-E-G] ·

**Kamai/ Singh Vs. State of Haryana 2009 (11) SCR 470 = 2009 (8) sec 539 - referred to.

1.8 It can, thus, be seen that apart from the fact that

F in Kamai/ Singh, the issue was regarding the scope and applicability of s. 42 of the NDPS Act in the matter of conducting search, seizure and arrest without warrant or authorisation, the said decision does not depart from the dictum laid down in Baldev Singh's case in so far as the obligation of the em1fowered officer to inform the suspect of his right enshrined in sub-s. (1) of s. 50 is concerned.

G It is also plain from Kamai/ Singh's case that the flexibility in procedural requirements in terms of the two newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and H

A not as a matter of course. Additionally, sub-s. (6) of s. 50

makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by him for his belief in terms of sub-s. (5), to his immediate superior officer, within the stipulated time, which exercise would B again be subjected to judicial scrutiny during the course of trial. [para 20] [276-D-G]

1.9 As regards the judgments in Joseph Ffjrnandez and Prabha Shanakar Dubey£, it is manifest that Joseph Fernandez does not notice the ratio of Baldev Singh and C in Prabha Shankar Dubey, Joseph Fernandez is followed

ignoring the dictum laid down in Baldev Singh's case. The concept of "substantial compliance" with the requirement of s. 50 of the NDPS introduced and read into the mandate of the said Section in Joseph Fernandez and D Prabha Shankar Dubey is neither borne out from the language of sub-s. (1) of s.50 nor is it in consonance with the dictum laid down in Baldev Singh's case. The question whether or not the procedure prescribed has been followed and the requirement of s.50 had been met, is a E matter of trial. It would neither be possible nor feasible

to lay down any absolute formula in that behalf. Further, though s. 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart F authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add G legitimacy to the search proceedings, it may verily

strengthen the prosecution as well. [para 21-22] [278-A-

B-F-H; 279-A-C]

£Joseph Fernandez Vs. State of Goa 2000 (1) SCC 707 Prabha Shankar Dubey Vs. State of M.P. 2003 (6) Suppl.

H SCR 444 = 2004 (2) SCC 56 - disapproved.

VIJAYSINH CHANDUBHA JADEJA v. STATE OF 261

GUJARAT ,

Krishna Kanwar (Smt) alias Thakuraeen Vs. State of A Rajasthan 2004 (1) SCR 1101 = 2004 (2) SCC 608 - referred to.

Beckodan Abdul Rahiman Vs. State of Kera/a 2002

(3) SCR 53 = 2002 (4) SCC 229; M.Prabhu/al Vs. Assistant B Director, Directorate of Revenue Intelligence 2003 (3) Suppl.

SCR 958 = 2003 (8 ) SCC 449; and Union of India Vs.

Satrohan 2008 (10) SCR 888 = 2008 (8) SCC 313; Ahmed Vs. State of Gujarat (2000) 7 SCC 477; State of Rajasthan Vs. Ram Chandra 2005 (3) SCR 496 =2005 (5) SCC 151; State of Punjab Vs. Balbir Singh 1994 (2) SCR 208 =1994 C

(3) SCC 299; Saiyad Mohd. Saiyad Umar Saiyad & Ors. Vs.

State of Gujarat 1995 (3) SCR 117 = 1995 (3) SCC 610; Ali Mustaffa Abdul Rahman Moosa Vs. State of Kera/a 1994 (4) Suppl. SCR 52 = 1994 (6) sec 569 - cited.

Case Law Refeence:

2000 (1) sec 707 disapproved para 2

2003 (6) Suppl. SCR 444 disapproved para 2

2004 (1) SCR 1101

1999 (3) SCR 977

2002 (3) SCR 53

referred to

relied on

cited

2003 (3) Suppl. SCR 958 cited ' !

2008 (10) SCR 888 cited

(2000) 1 sec 477

2005 (3) SCR 496

1994 (2) SCR 208

1995 (3) SCR 117

1994 (4) Suppl. SCR 52

cited

cited

cited

cited

cited

para 2

para 2

para 7

para 8

para 8

para 8

para 9

para 10

para 10

para 10

2009 (11) SCR 470

1975 (1) SCR 504

referred to

cited

para 19

para 22

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 943 of 2005.

From the Judgment & Order dated 21.10.2002 of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 962 of 1999.

Crl. A. No. 974 of 2003.

Crl. A. No. 809 of 2009.

WITH

Pravin H. Parekh Siddharth Luthra, S.K. Dubey, P.P.

D Malhotra, ASG, Sameer Parekh, Lalit Chauhan, Ranjeeta Rohatgi, Rajat Nair, Pallavi Srivastava (for Parekh & Co.) Tara Chandra Sharma, Neelam Sharma, Ajay Sharma, Kishan Datta, Chittaranjan, Radha Shyam Jeena, Hemantika Wahi, Jesal, Somnath Pradhan, Ranjan Mukherjee, S. Bhowmick,, P.K.

E Dey, Shashi Kumar Dubey, Sadhna Sandhu, Anil Katiyar and Subhash Kaushik for the appearing parties.

The Judgment of the Court was delivered by

F D.K. JAIN, J. 1. The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act") casts a duty on the empowered officer tb 'inform' the suspect of his right to be searched in the G presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a Gazetted Officer can be said to be due compliance with the mandate of the said Section?

2. When these appeals came up for consideration before A a bench of three Judges, it was noticed that there was a divergence of opinion between the decisions of this Court in the case of Joseph Fernandez Vs. State of Goa 1, Prabha

Shankar Dubey Vs. State of M. P. 2 on the one hand and Krishna Kanwar (Smt) alias Thakuraeen Vs. State of B Rajasthan3 on the other, with regard to the dictum laid down by the Constitution Bench of this Court in State of Punjab Vs.

Ba/dev Singh4 , in particular regarding the question whether before conducting search, the concerned police officer is merely required to ask the suspect whether he would like to be C produced before the Magistrate or a Gazetted Officer for the purpose of search or is the suspect required to be made aware of the existence of his right in that behalf under the law. It would be expedient to extract the relevant portion of the order:-

"When the matter came up before this Court, it was D found that in some of the decisions rendered by this Court, a slightly different view was taken than what was expressed by the Constitution Bench with regard to interpretation of Section 50 of the NDPS Act. In the case Joseph Fernandez Vs. State of Goa, 2001 (1) SCC p.707, a E Bench of three Hon'ble Judges held that even when the searching officer informed him that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate"; it was held that it was in substantial compliance with the requirement of Section 50 of the F NDPS Act, and the Court observed that it did not agree with the contention that there was non-compliance of the mandatory provisions contained in Section 50 of the NDPS Act. In another decision of this Court in Prabha Shankar Dubey Vs. State of M.P. 2004(2) SCC p.56, the G following information was conveyed to the accused: "By

(2000) 1 sec 101.

(2004) 2 sec 56.

(2004) 2 sec 608.

(1999) 6 sec 112.

way of this notice, you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by a gazetted officer or by a

Magistrate". This was held to be substantial compliance of Section 50 of the NDPS Act. In Krishan Kanwar (Smt.) Alias Thakuraeen Vs. State of Rajasthan, 2004(2) SCC p.608, the same question was considered and it was held that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of the NDPS Act and it was held that "what is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself.

Since no specific mode or manner is prescribed or intended, the court has to see the substance and not the form of intimation. Whether the requirement of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or a straitjacket formula.

Thus, in a way, it all depends on the oral evidence of the officer who conducts search, in case nothing is mentioned in the search mahazar or any other contemporaneous document prepared at the time of search. In view of the large number of cases coming up under the provisions of the NDPS Act the interpretation of Section 50 of the Act requires a little more clarification as its. applicability is quite frequent in many cases. In appreciating the. law laid down by the Constitution Bench in Baldev Singh's case (supra), we have noticed that conflicting decisions have been rendered by this court. We feel that the matter requires some clarification by a larger Bench. The matter be placed before the Hon'ble Chief

Justice of India for taking further action in this regard." A

That is how these appeals came to be placed before this Constitution Bench.

3. Since the cases have come up before us for a limited purpose of clarification as to the interpretation of Section 50 of the NDPS Act by the Constitution Bench in Baldev Singh's case (supra), we deem it unnecessary to state the background facts, giving rise to these appeals.

4. We have heard learned counsel for the appellant, State c of Gujarat, State of West Bengal, Government of National Capital Territory of Delhi and learned Additional Solicitor General on behalf of Union of India.

5. Mr. P.H. Parekh, learned senior counsel appearing on behalf of appellant (Criminal Appeal No.943 of 2005), strenuously urged that a conjoint reading of Section 50(1) and 50(3) of the NDPS Act, in its common grammatical connotation, makes it abundantly clear that the procedural safeguards envisaged under Section 50 are to be employed effectively and

honestly while informing, apprising and advising the suspect of E his vested fight to be searched only by a Gazetted Officer or a

Magistrat~. It was contended that the ambit of statutory protection' granted by the Parliament under Section 50(1) of the NDPS Act having been explained unambiguously and clearly by the Constitution Bench in the case of Baldev Singh (supra), there is no scope for any other interp, retation or clarification of Section 50 of the NDPS Act.

6. Learned counsel vehemently contended that in the light

of the dictum laid down in Baldev Singh (supra), the decisions G of this Court in Joseph Ferna.ndez (supra) and Prabha Shankar Dubey (supra) wherein the concept of 'substantial compliance' has been erroneously read into Section 50 of the NDPS Act, do not lay down the correct proposition of law. It was argued that Section 50 being the only safeguard provided H

A to the suspect under the NDPS Act, the legislature, while enacting it, gave it the character of a "due process" clause, thereby placing some minimum procedural limitations on the exercise of such extensive statutory power, by insisting on the strict observance of the procedure established under the said s Section. According to the _learned counsel, this safeguard is meant to ensure that the powers under the NDPS Act are not abused and a person is not falsely implicated and subjected to grave consequences which are likely to follow under the said Act. Relying on the decision of this Court in Beckodan Abdul c Rahiman Vs. State of Kera/a5 , learned counsel submitted that the harsh provisions of the NDPS Act cast a heavier duty upon the prosecution to strictly follow and comply with the safeguards.

7. Learned counsel thus, argued that the theory of 'substantial compliance' cannot be applied to defeat, negate D or neutralise important safeguards provided by the legislature.

It was asserted that merely asking the suspect whether he would like to be produced before a Magistrate or a Gazetted Officer for the purpose of the search can never amount to due compliance with Section 50 of the NDPS Act.

8. Mr. Siddharth Luthra, learned senior counsel appearing on behalf of State of Gujarat, on the other hand, submitted that the rigours of Section 50 of the NDPS Act are neither applicable to the officers who have been empowered by a F warrant under Section 41 (1 ); nor to the gazetted/empowered officers who order search or arrest under Section 41(2). It was argued that Section 41(1) of the NDPS Act grants the Magistrate the power to issue warrants for arrest or search, whether by day or night, inter alia, in relation to a person whom G the Magistrate has reason to believe has committed an offence under the NDPS Act. It was urged that a reading of Sections 41 (1 ), 41(3), 42, 43 and 50 of the NDPS Act shows that an officer acting under a warrant by a Magistrate under Section 41 (1) would not fall within the ambit of Section 50(1) of the

H 5. (20021 4 sec 229.

NDPS Act. It was submitted that from the language of Section. A 41 (2) of the NDPS Act, it is clear that the Central Government

or the State Government, as the case may be, can only empower an officer of a gazetted rank who can either himself act or authorise his subordinate on the terms stated in the.

Section. On the contrary, however, under Section 42(1) of the NDPS Act, there is no restriction on the Central Government B

or the State Government to empower only a gazetted officer and, therefore, additional checks and balances over officers acting under Section 42 have been provided in the proviso to Section 42(1) and in Section 42(2) of. the !\!DPS Act. It was, . C thus, contended that the language of Section 42 of the NDPS Act makes it clear that the provision applies only to an officer empowered under Section 42( 1) and not an empowered Gazetted Officer under Section 41 (2) of the NDPS Act. In support of the submission that a distinction between a Gazetted Officer and an officer acting under Section 42 of the NDPS Act D has to be maintained, learned counsel commended us to the decisions of this Court in M. Prabhulal Vs. Assistant Director, Directorate of Revenue lntelligence6 and Union of India Vs.

Satrohan7 . It was pleaded that the divergent view on the point expressed by this Court in Ahmed Vs. State of GujarafB, does E not lay down the correct proposition of law.

9. It s then contended by Mr. Luthra that a reading of sub-sections (1) and (3) of Section 50 of the NDPS Act makes it clear that the.right granted to a suspect is not the right to be F searched before:the nearest Gazetted Officer or nearest Magistrate,'but the right to be taken before the nearest Gazetted Officer or nearest Magistrate, whereupon such officer or Magistrate :is duly empowered under Section 50(3), to either discharge the suspect from detention or direct that a search G be made. In support of the proposition, reliance is placed on a

(2003) 8 sec 449

7. (2ooai a cc 313.

(2000) 7 sec 477.

A decision of this Court in State of Rajasthan Vs. Ram Chandra9•

10. Learned counsel also submitted that the decisions of this Court in State of Punjab Vs. Ba/bir Singh 10, Saiyad Moi1d.

Saiyad Umar Saiyad & Ors. Vs. State of Gujarat11, Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerata 12 and affirmed in 8 Baldev Singh (supra) have all read the phrase 'for making the search' into Section 50(1) of the NDPS Act, which has led to safeguards and protections to an accused person, as envisaged under Section 50 of the !\DPS Act to be read down, making the said provision virtually ineffective and, therefore, the C decision of this Court in Baldev Singh (supra) needs reconsideration.

11. Adopting the same line of arguments, Mr. P.P.

Malhotra, the learned Additional Solicitor General, appearing o on behalf of the Government of NCT of Delhi maintained that it is clear fiom language of Sections 41 (2), 42 and 43 of the NDPS Act that the legislature has dealt with gazetted offic.ers differently, reposing higher degree of trust in them and, therefore, if a search of a person is conducted by a gazetted E officer, he would not be required to comply with the rigours of Section 50(1) of the Act. It was argued that the view expressed by this Court in Ahmed (supra), is incorrect and. therefore, deserves to be reversed.

12. The NDPS Act was enacted in the year 1985, with a F view to consolidate and amend the law relating to narcotic drugs, incorporating stringent provisions for control and regulation of operations relating to narcotic drugs and psychotropic substances. The object of the said legislation has been explained time and again by this Court in a plethora of G cases and, therefore, we fel that it is not necessary to delve

(2005) s sec 151.

10. (1994) 3 sec 299.

11. (1995) 3 sec 510.

12. (1994) 6 sec 569.

upon this aspect all over again, except to re-emphasise that in A order to prevent abuse of the provisions of the NDPS Act, which confer wide powers on the empowered officers, the safeguards provided by the Legislature have to be observed. strictly. Moreover, having regard to the terms of reference to. the larger Bench, extracted above, it is equally unnecessary to-~ B extract extensively all the provisions of the NDPS Act to which reference was made by learned counsel appearing for the States, and a brief reference to these provisions would suffice.

13. Under Section 41 of the NDPS Act, certain classes of C Magistrates are competent to issue warrants for the arrest of any person whom such Magistrates have reason to believe to have committed any offence punishable under the NDPS Act, or for the search of any building, conveyance or place in which such Magistrate has reason to believe any narcotic drug or psychotropic substance or controlled substance in respect of D which an offence punishable under the said Act has been committed. or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which E is liable for seizure or freezing or forfeiture under Chapter VA is kept or concealed. Under Section 42 of the NDPS Act, the empowered officer can enter, search, seize and arrest even without warrant or authorisation, if he has reason to believe from his personal knowledge or information taken down in writing, F that an offence under Chapter IV of the said Act has been committed. Under proviso to sub-section (1 ), if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may G enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief and send the same to his immediate official superior in terms of sub-section (2) of the Section.

14. Section 50 of the NDPS Act prescribes the conditions under which personal search of a person is required to be conducted. Being the pivotal provision, the Section, (as amended by Act 9 of 2001 - inserting sub-sections (5) and (6) with effect from 2nd October 2001) i~ extracted in full. It reads B as under:

"50. Conditions under which search of persons shall be conducted.-(1) When any officer duly authorised Linder section 42 is about to search any person under the provisions of section 41 , section 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.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referrecl to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched 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, or controlled substance or article or document, he may, instead. of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

VIJAYSINH CHANDUBHA JAOEJA v. STATE OF 271

GUJARAT [D.K. JAIN, J.)

(6) After a search is conducted under sub-section (5), the A officer shall record the reasons for such belief Which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. 9

15. Sub-section (1) of the said Section provides that when 8 the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest gazetted officer or the Magistrate for the purpose. Under sub-section (2), it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought C before such gazetted officer or the Magistrate. It is manifest that if the suspect expresses the desire to be taken to the gazetted officer or the Magistrate, the empowered officer is restrained from effecting the search of the person concerned. He can only detain the suspect for being produced before the gazetted D officer or the Magistrate, as the case may be. Sub-section (3) lays down that when the person to be searched is brought before such gazetted officer or the Magistrate and such gazetted officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the E person to be searched, otherwise he shall direct the search to be made. The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted F officer or the Magistrate, as the case may be, directs the authorised officer to do so.

16. At this juncture, we must state that the issue before us in terms of the referral order is not about the applicability of G Section 50 of the NDPS Act per se but is confined to the scope and width of the expression "if the person to be searched so requiresn as figuring in sub-section (1) of the said Section.

Therefore, we deem it unnecessary to evaluate the submissions made by the learned counsel regarding the applicability of the H

A rigours of Section 50 of the NDPS Act when a search of the suspect is conducted by an officer empowered under Section 41 of the said Act. We may, however, add that while

considering the question of compliance with Section 50 of the NDPS Act, the Constitution Bench in Baldev Singh (supra) considered the provisions of Section 41 as well. It observed as under:-

"8. Section 41 of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the First Class or any Magistrate of the Second Class specially empowered by the State Government in this behalf, may issue a warrant for the arrest of and for search of any person whom he has reason to believe to have committed any offence punishable under Chapter IV. Vide sub-section

(2) the power has also been vested in gazetted officers of the Departments of Central Excise, Narcotics, Customs, Revenue Intelligence or any other department of the Central Government or of the Border Security Force, empowered in that behalf by a general or special order of the State Government to arrest any person, who he has reason to believe to have committed an offence punishable under Chapter IV or to search any person or conveyance or vessel or building etc. with a view to seize any contraband or document or other article which may furnish evidence of the commission of such an offence, concealed

in such building or conveyance or vessel or place."

17. In the above background, we shall now advert to the controversy at hand. For this purpose, it would be necessary to recapitulate the conclusions, arrived at by the Constitution G Bench in Baldev Singh's case (supra). We are concerned with the following conclusions:-

"57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a. person, it is imperative for him to inform the H person concerned of his right under sub-section (1) of

Section 50 of being taken to the nearest gazetted officer A or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.

~(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted 8 officer or a Magistrate would cause prejudice to an accused.

(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer C or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the D conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.

E xxxxx xxxxx xxxxx xxxxx

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial.

Finding on that issue, one way or the other, would be F relevant for recording an order of conviction or acquittal.

Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a G criminal trial.

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion H

whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.

(7) That an illicit article seized from the person (]If an accused during search conducted in violation of the safeguards,.,, provided in Section 50 of the Act cannot be used as-evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery. of that material during an illegal search."

18. Although the Constitution Bench did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative E for the empowered officer to "inform" the person concerned

(suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to "inform" the suspect about the existence of his said right would cause prejudice to him, and in case he so opts.

F failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, G recovered from the person during a search conducted in

violation of the provisions of Section 50 of the NDPS Act .. The Court also noted that it was not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing but it was mandatory that the H suspect was made aware of the existence of his right to be

searched before a gazetted officer or a Magistrate, if so A required by him. We respectfully concur with these conclusions.

Any other interpretation of the provision would make the valuable right conferred on the suspect illusory and a farce.

19. As noted above, sub-sections (5) and (6) were inserted 8 in Section 50 by Act 9 of 2001 . It is pertinent to note that although by the insertion of the said two sub-sections, the rigour of strict procedural requirement is sought to be diluted under the circumstances mentioned in the sub-sections, viz. when the authorised officer has reason to believe that any delay in search of the person is fraught with the possibility of the person to be C searched parting with possession of any narcotic drug or psychotropic substance etc., or article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases a safeguard against any arbitrary use of power has been D provided under sub-section (6). Under the said sub-section, the empowered officer is obliged to send a copy of the reasons, so recorded, to his immediate official superior within seventy two hours of the search. In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub- E section (1) of Section 50 to inform the person, to be searched, / of his right to be taken before a gazetted officer or a Magistrate.

The object and the effect of insertion of sub-sections (5) and

(6) were considered by a Constitution Bench of this Court, of which one of us (D.K. Jain, J.) was a member, in Kamai/ Singh F Vs. State of Haryana 13• Although in the said decision the Court did observe that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev Singh's case (supra) is diluted but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have G been taken away completely. The Court observed :-

'Through this amendment the strict procedural requirement as mandated by Baldev Singh case was avoided as

13. (2009) a sec 539.

c /

relaxation and fixing of the reasonable time to send the record to the superior official as well as exercise of Section 100 CrPC was included by the legislature. The effect conferred upon the previously mandated strict compliance with Section 50 by Baldev Singh case was that the procedural requirements which may have handicapped an emergency requirement of search and seizure and give the suspect a chance to escape were made directory based on the reasonableness of such emergency situation. Though it cannot be said that the protection or safeguard given to the suspects have been taken away completely but certain flexibility in the procedural norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baldev Singh case is diluted."

20. It can, thus, be seen that apart from the fact that in Kamai/ Singh (supra}, the issue was regarding the scope and applicability of Section 42 of the NDPS Act in the matter of conducting searcn, seizure and arrest without warrant or authorisation, the said decision does not depart from the dictum E laid down in Baldev Singh's case (supra) in so far as the

obligation of the empowered officer to inform the suspect of his right enshrined in sub-section (1) of Section 50 of the NDPS Act is concerned. It is also plain from the said paragraph that the flexibility in procedural requirements in terms of the two F newly inserted sub-sections can be resorted to only in emergent and urgent situations, contemplated in the provision, and not as a matter of course. Additionally, sub-section (6) of Section 50 of the NDPS Act makes it imperative and obligatory on the authorised officer to send a copy of the reasons recorded by G him for his belief in terms of sub-section (5), to his immediate superior officer, within the stipulated time, which exercise would again be subjected to judicial scrutiny during the course of trial.

21. We shall now deal with the two decisions, referred to in the referral order, wherein "substantial compliance" with the

requirement embodied in Section 50 of the NDPS Act has A been held to be sufficient. In Prabha Shankar Dubey (supra), a two Judge bench of this Court culled out the ratio of Baldev Singh's case (supra), on the issue before us, as follows:

"What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) B

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 C 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."

However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, findng similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez (supra), the Court chose

to follow the views echoed in the latter case, wherein it was held E that searching officer's information to the susped to the effect that "if you wish you may be searched in the presence of a gazetted officer or a Magistrate" was in substantial compliance with the requirement of Section 50 of the NDPS Act.

Nevertheless, the Court indicated the reason for use of F expression "substantial compliance" in the following words:

"The use of the expression "substan_tial compliance" was made in the background that the searching officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh . G case. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations."

It is manifest from the afore-extracted paragraph that Joseph H

A Fernandez (supra) does not notice the ratio of Baldev Singh

(supra) and in Prabha Shankar Dubey (supra), Joseph Fernandez (supra) is followed ignoring the dictum laid down in Baldev Singh's case (supra).

22. In view of the foregoing discussi.on, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting C or foisting of false cases by the law enforcement agencies, it

would be imperative on the part of the empowered officer to apprise the person intended to be s.earched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the D NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the

illicit article from the person of the accused during such search.

E Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Po/114, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the F opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and G read into the mandate of the said Section in Jos.eph Fernandez

(supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not

1-;1

14. (t974) 2 sec 33.

the procedure prescribed has been followed and the A requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person

(suspect) either before the nearest gazetted officer or the a Magistrate but in otder to impart authenticity, transparency and creditworthiness to the enttre proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only c add legitimacy to the search proceedings, it may verily strengthen the prosecution as well.

23. Accordingly, we answer the reference in the manner aforesaid. The appeals shall, now, be placed before the appropriate Bench for disposal.

R.P. Reference answered.