Sita Alias Kali Verma vs State Of U.P.
2018 Latest Caselaw 1458 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved on 04.06.2018
 
Delivered on 10.07.2018
 
In Chamber
 
Case :- JAIL APPEAL No. - 4367 of 2017
 

 
Appellant :- Sita Alias Kali Verma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail
 
Counsel for Respondent :- A.G.A.
 
                                 AND
 
Case :- JAIL APPEAL No. - 4368 of 2017
 
Appellant :- Kalpana
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Dr Abidab Syeed A.C
 
Counsel for Respondent :- A.G.A.
 
Hon'ble Chandra Dhari Singh,J.

1. Heard Dr. Abidab Syeed learned Amicus Curiae for the appellant, learned A.G.A. for the State and perused the record.

2. This instant jail appeal has been preferred against the judgment and order dated 28.04.2017, passed by the Additional Sessions Judge/ Special Session Judge (SC/ST P.A. Act), Siddharthnagar in Session Trial No.11 of 2012, by which the accused-appellants had been convicted for offence punishable under Section 20 (b) (ii) (c) of Narcotic Drugs & Psychotropic Substances Act I.P.C. and sentenced to undergo 10 years rigorous imprisonment with fine of Rs.1,00000/-. In the event of default in payment of fine, the appellant would further undergo two years additional rigorous imprisonment.

3. Brief facts of the case.

(I) As per the prosecution story, the complainant S.O. Hari Singh Yadav got report registered at P.S. Dhebrua to this effect that "on 06.06.2012, S.O. Hari Singh Yadav along with S.I. Ramesh Yadav, Station Incharge, Badhni along with Constable No.266 Mubarak Khan, Constable No.695 Mudrika Yadav, Constable No.692 Mukesh Kumar Yadav, Constable No.911 Aaftab Alam, Constable No.363 Umesh Kumar, Constable No.485 Kaushal Chaurasiya and Constable No.409 Nathuni Yadav by Government Jeep bearing Registration No.UP-55G-0108 driven by Nirbhay Singh met S.S.B. Assistant Commandent Shri Rangrath, Constable 050332291 G.D. Arvind Tiwari, Constable 0070195 G.D. Balakram and Ladies Constable 080615593 K. Devi and Constable 080611132, near no men's land at Chamanganj. Where they were discussing about law and order situation in relation to 'Nagar Panchayat Elections, 2012', at that point of time, informer of S.S.B. came and informed that two ladies carrying 'Charas' from Nepal are going to enter in India from Pillar No.568. On believing such information, he with other officers and S.S.B. force moved towards Pillar No.568, then they saw that two ladies from Nepal border entered in India near Pillar No.568. The informer by pointing towards them confirmed that those were the said ladies. They saw the police officers and started moving fastly towards India, then with the help of lady constable of S.S.B., they were caught in Indian limits at about 150 mtrs. from no men's land. On enquiring, they told their names respectively as- 1). Sita @ Kali Verma w/o Radheyshyam Verma, R/o Bhagwati Toll Dharai Ward No.10, P.S. Tulsipur Chowk, District Daang, Nepal, 2). Kalpana w/o Rajkumar, R/o Dharai Ward No.10, P.S. Jiparkar, District Daang, Nepal. They were asked for being searched, on that both ladies admitted that they are possessing 'Charas'. They were also told that their search will be conducted in presence of a Magistrate or a Gazetted Police Officer. They started saying that when you people have caught us then you can search us. On their consent, their 'Consent Fard' was prepared. Police officials after searching each other and with the help of lady constable conducted 'Parda Search' of both ladies and recovered 9 packets of Charas from Sita @ Kali tied at waist with a belt and wrapped in polythene and also recovered 9 packets of Charas from Kalpana @ Kali tied at waist with a belt and wrapped in polythene. On being asked, Constable Umesh Kumar brought weighing machine and said recovered packets were weighed. The total weight of 9 packets of Charas recovered from Sita @ Kali is 4.588 kg. and weight of 9 packets of Charas recovered from Kalpana is 5.742 kg. They were asked to show documents pertaining to said recovered Charas but they failed to show any document. Thereafter, they have committed the offence punishable under Section 8/20 of N.D.P.S. Act. At around 17.20 hours, the police after stating reasons to them arrested them and take them in custody after complying with orders and guidelines issued by the Hon'ble Apex Court and Human Rights Commission. Information of arrest of both accused persons was given at their respective addresses. Out of recovered Charas from both, 50 gm. each was taken separately and sample parcels were prepared and remaining Charas was sealed in two separate parcels in white cloth. Respective Fards were prepared and read over to the related persons and their signatures were being taken. Several persons gathered at the time of recovery and arrest but scattered on being asked to be a witness of the incident."

(II) On the basis of said complaint, F.I.R. was registered against accused Sita @ Kali Verma as Case Crime No.597/2012, under Section 8/20 N.D.P.S. Act and accused Kalpana as Case Crime No.598/2012, under Section 8/20 N.D.P.S. Act at Police Station Dhebrua and charge sheet has been filed, accordingly the court took cognizance of offence and summoned the accused persons for their trial.

(III) On perusal of entire evidences available on record, the court vide order dated 28.09.2014 framed charge under Section 20 (b) (ii)(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 against accused Sita @ Kali Verma and Kalpana. Vide order dated 11.12.2014 amended charge has been framed under Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 against accused Sita @ Kali Verma and Kalpana. The accused persons denied charges framed against them and claimed trial.

(IV) The prosecution examined five witnesses and perused the several material available on the record for conviction of the accused persons in the present case.

(V) The Court of Additional Session Judge/Special Session Judge, Siddharthnagar vide order dated 29.04.2017 convicted the accused persons under Section 20(b)(ii)(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentenced them 10 years of rigorous imprisonment and fine of Rs.1,00000/- (Rupees one lac) each. In case of default of deposition of fine they were further suffered to two years rigorous imprisonment.

(VI) Both the accused persons were preferred the present Jail Appeal No. 4368 of 2017 against the order dated 29.04.2017 passed by Additional Session Judge/Special Session Judge, Siddharthnagar in S.T. No.10 of 2012 before this Court.

4. PW-1 Hari Singh Yadav, who was posted as S.O., P.P. Ganj, District Gorakhpur has deposed on oath that on 06.06.2012, he was posted as S.H.O., Dhebrua, on said day he departed with S.I. Ramesh Yadav, Station Incharge, Badhni, Constable Mubarak Khan, Constable Mudrika Yadav, Constable Mukesh Kumar Yadav, Constable Aaftab Alam, Constable Umesh Kumar, Constable Kaushal Chaurasiya and NathuniYadav by Government Jeep bearing Registration No.UP-55G-0108 driven by Nirbhay Singh. They met S.S.B. Assistant Commandent Shri Rangrath and his companions near no men's land at Chamanganj and talking in repsect of 'Nagar Panchayat Elections', then informer of S.S.B. Came and gave information that two ladies carrying 'Charas' from Nepal are trying to enter in India from Pillar No.568. On believing such information, he with other officers and S.S.B. force moved towards Pillar No.568 then they saw that two ladies from Nepal border were trying to enter in India near Pillar No.568. The informer by pointing towards them confirmed that those were the said ladies. When they saw the police officers, they started moving fastly towards India and tried to escape but were stopped by Lady Constable of S.S.B. On enquiring, they told their names respectively as- 1). Sita @ Kali Verma w/o Radheyshyam Verma, R/o Bhagwati Toll Dharai Ward No.10, P.S. Tulsipur Chowk, District Daang, Nepal, 2). Kalpana w/o Rajkumar, R/o Dharai Ward No.10, P.S. Jiparkar, District Daang, Nepal. Both the ladies were made aware about their rights that their search will be conducted in presence of a Magistrate or a Gazetted Police Officer. They told the police officers that they had no objection, if they have been searched by the officials present and also told the police officers that no need for the Magistrate and any Gazetted Officer for the purpose of searching the accused. The 'consent fard' was prepared and they were searched by the police officers on the site. On search it was found that 9 packets of Charas recovered from the accused Sita @ Kali Verma and Kalpana. The PW-1 also proved the Ex.K-1 which is consent fard. On the recovery of the Charas from both the ladies, they were asked to show documents pertaining to said recovered Charas but they failed to show any such documents. At around 17.20 hours, after stating reasons to them for arresting, arrested them and took them in custody. Out of recovered Charas from both, 50 gm each was taken separately and sample parcels were prepared and remaining Charas was sealed in two separate parcels in white cloth. Several persons were present at the site but nobody was ready to become a witness of the recovery. After complying with orders and guidelines issued by the Hon'ble Apex Court and Human Rights Commission, he prepared respective Fards on the spot and read over in the presence of all and took their signatures on it. Copy of respective fards were provided to each accused. Certified copy of 'Fard Recovery' is proved by him, which is marked as Ex.K-2. Seized goods in relation to Crime No.598/12 was produced before the Court in sealed condition in white cloth by 'pairokar' Bawanjeet. As per the direction of the Court the sealed cloth was opened, then witness after looking the same deposed that it is the Charas which he had seized from the possession of accused Kalpana who is present in Court. There are total 9 packets of Charas. Charas marked as Article Ext.-1, Polythene was marked as Ext.-2 and cloth was marked as Article Ext.-3. He stated that they reached police station with seized material in sealed condition in 'maalkhana', accused persons were kept under security of Lady Constable and case has been registered against them.

5. PW-2 Ramesh Yadav, posted as S.H.O., Maghar, P.S. Khalilabad, District Siddharthnagar has deposed on oath that on 06.06.2012, he was posted as Station Incharge Badhni, P.S. Dhebrua, District Siddharthnagar met Station House Officer, Dhebrua Shri Hari Singh Yadav and other officers. They also met S.S.B. Assistant Commandant Shri Rangrath and his companions and Lady Constable at Chamanganj. The informer of S.S.B. came and gave information that two ladies carrying 'Charas' from Nepal are going to enter in India from Pillar No.568. On believing such information, they moved towards Pillar No.568 and saw that two ladies from Nepal border entered in India near Pillar No.568. The informer by pointing towards them confirmed that those were the said ladies. They saw him and started moving fastly towards India, at that point, with help of Lady Constable of S.S.B., they were caught in Indian limits at about 150 mtrs. from no men's land. On inquiring, they told their names respectively as Sita @ Kali verma w/o Radheyshyam Verma, R/o Bhagwati Toll Dharai Ward No.10, P.S. Tulsipur Chowk, District Daang, Nepal, and Kalpana w/o Rajkumar, R/o Dharai Ward No.10, P.S. Jiparkar, District Daang, Nepal. In respect of their search, they were told that their search will be conducted in presence of a Magistrate or a Gazetted Police Officer. They started saying that when you have caught them then you can search them. On believing their saying their 'Consent Fard' was prepared after taking consent of Sita and Kalpana, which is before him, he proved the same, which was marked as Ext.-K. Thereafter, with the help of S.S.B. Lady Constable their 'parda search' was conducted and 9 packets of Charas from Sita @ Kali were recovered which were tied at waist with a belt wrapped in polythene and also recovered 9 packets of Charas from Kalpana @ Kali which were tied at waist with a belt wrapped in polythene. Weighting machine had been brought and said recovered packets were weighted, on weighting them, the total weight of 9 packets of Charas recovered from Sita @ Kali was found to be 4 kg. 588 gm. and weight of 9 packets of Charas recovered from Kalpana was found to be 5 kg 742 gm. They were asked to show documents pertaining to said recovered Charas but they failed to show any such document. At around 17.20 hours, after stating reasons to them for arresting, arrested them and took them in custody. Out of recovered Charas from both, 50 gm each was taken separately and sample parcels were prepared. Information in respect of arrest of accused persons was sent through S.S.B. Constable to higher officials telephone. Remaining Charas was sealed in two separate parcels in separate clothes. Several persons gathered on the spot but scattered on being asked to be a witness of the incident. Respective Fards were prepared on the spot by S.O. Hari Singh Yadav and duly signed by him in presence of witnesses and read over the same in the presence of all and their signatures were taken on it. Copy of respective Fards were provided to each accused, which bears him signature, he prove the same, which is marked as Ext.K-2.

6. PW-3 Constable No.578 Harinath posted at P.S. Mishroliya, District Siddharthnagar has deposed on oath that "on 16.12.2012, he was posted at P.S. Dhebrua and on that day seized sample was taken out of 'malkhana' of police station in a sealed condition and was produced before C.O, Shohratgarh. The C.O. matched seal of seized sample with sample seal in connection of Crime No.597/12 and 598/12. Docket was prepared and his signatures were taken on it. On 18.06.2012, he took samples in connection of both cases to Forensic Science Laboratory, Lucknow in sealed condition and submitted them as Lot No.4341 and 4342, whose submission was entered on dockets, he prove the same, these were marked as Ext. K-3 & 4, respectively. Both samples were in a sealed condition till they were with him. Main 'maalkhana register' of P.S. Shohratgarh which is from year 1992 to year 2016, in said register entries were made in respect of material relating to Crime No.597/12 and 598/12 at Sl. No.7 & 8 of the month of June, 2012 and at the end of the said month its 'Gosawara' was prepared which bears signatures of Head Clerk and Station House Officer, he produce and verify the copy of said entry, which is marked as Ext.K-5".

7. PW-4 Sub-Inspector Vindhyachal Shukla posted at P.S. Saadat, District Ghazipur has deposed on oath that "On 06.06.2012, he was posted at P.S. Dhebrua, on that day he prepared 'Chik' F.I.R. as Crime No.597/12 & 598/12 on the basis of 'Fard' in my handwriting and signatures, which is on record. He proved the same, it was marked as Ext.K-6. Entry of this case was done in G.D. Report No.37 at 19.10 hours and carbon copy was attached along with original. Carbon copy is on record, which is in my handwriting, He proved the same, which is marked as Ex.K-7.

8. PW-5 Ramashish Yadav, retired Inspector, Gahna, P.S. Khajni, District Gorakhpur has deposed on oath that "on 07.06.2012, he was posted as Sub-Inspector at P.S. Shohratgarh, District Siddharthnagar. He submitted that as per the orders of higher officials, he had been directed to investigate Case Crime No.597/12 & 598/12, under Section 8/20, N.D.P.S. Act of P.S. Dhebrua against Sita @ Kali Verma and Kalpana, respectively. He came at P.S. Dhebrua from P.S. Shohratgarh. He received copy of report, copy of chik and other records pertaining to both FIR's. He took up the investigation as Sub-Inspector. On 07.06.2012, first entry was made in case diary of both the cases in which copy of FIR, copy of report, copy of Fard, consents of accused, statements of accused Sita @ Kali Verma and Kalpana were recorded. On 08.06.2012, second entry was made in case diary in which statement of complainant/informant Shri Hari Singh Yadav, S.O., P.S. Dhebrua, statements of witnesses namely Constable Mubarak Khan, Constable Mudrika Yadav, Constable Mukesh Kumar yadav, Constable Aaftab Alam, Constable Umesh Kumar, Constable Kaushal Chaurasiya, constable Nathuni Yadav and S.S.B. Badhni Assistant Commandent Shri Rangnath and S.S.B. Constable Arvind Tiwari, S.S.B. Lady Constable K. Devi and S.S.B. Lady Constable Sangeeta, S.S.b. Constable Balakram and S.I. Ramesh Yadav, Station Incharge, Badhni were recorded and at the instance of S.O. Shri Hari Singh Yadav place of incident had been inspected and 'Naksha Najri' was prepared in his own handwriting which is on record as Paper No.6k, it was marked as Ext.K-8, thereafter, statements of witnesses namely Chinkan and Satender were recorded. On 20.06.2012, third entry was made in case diary which is a document for remand. On 22.06.2012, fourth entry was made, wherein sending of seized sample material Charas to Forensic Science Laboratory, Lucknow is mentioned. Material relating to both cases were submitted at Forensic Science Laboratory, Lucknow vide entry No.4341 and 4342, respectively. After the completion of investigation sufficient evidences were found in relation to illegal possession of 4.588 kg Charas by accsued Sita @ Kali Verma and 5.742 kg Charas by accused Kalpana, thereafter, charge sheet No.80/12 and 81/12 were issued against both the accused, respectively which is in his handwriting, he proved the same, it is marked as Ex.K-9 and charge sheet of Case Crime No.598/12 is marked as Ex.K-10.

9. Dr. Abidab Syed learned Amicus Curiae appearing on behalf of appellant submitted that the court below erred in holding the appellant guilty of commission of the offence in question. He contended that the prosecution has failed to ensure mandatory compliance of Section 50 of N.D.P.S. Act inasmuch as alleged recovery/search of contraband (Charas) made by the raiding police party from the appellants was not done in accordance with the procedure prescribed under Section 50 of N.D.P.S. Act which according to learned counsel is mandatory as held the Hon'ble Supreme Court in the case of Vijay Singh Chandubha Jadeja vs. State of Gujarat, 2011 (1) SCC 609. The learned counsel urged that the search/recovery of the alleged contraband from the appellants out to have been made by either a Magistrate or a Gazetted Officer only. It was urged that since admittedly the prosecution did not make the search recovery from the appellant in the presence of Magistrate or a Gazetted Officer and, therefore, the alleged recovery of the contraband (Charas) from the appellants are rendered illegal being in the contravention of requirements of Section 50 of the N.D.P.S. Act, thereby entitling the appellants for an acquittal form the charges.

10. Learned counsel appearing for the State, however, supported the judgment of the trial court and is pointed out that since recovery of the offending materials has been established, the offence cannot be brust aside altogether.

11. To appreciate the arguments of the parties, relevant Sections of the N.D.P.S. Act have to be looked into, which are as under:

Sub-clause (viia) of Section 2 of N.D.P.S. Act.

"commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette.

Sub-clause (xxiiia) of Section 2 of N.D.P.S. Act.

"small quantity", in relation to narcotic drugs and psychotropic substances, means any quantity lesser than the quantity specified by the Central government by notification in the Official Gazette.

Section 42 of N.D.P.S. Act.

Power of entry, search, seizure and arrest without warrant or authorization. - (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise police or any other department of State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has we 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 is liable for seizure or freezing or forfeiture under Chapter V A of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

 
(c)	seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V A of this Act; and
 
(d)    detained and search, and, if he thinks proper, 	arrest any person whom he has reason to 	believe to have committed any offence 	punishable under this Act :
 
 	[Provided that in respect of holder of a licence for manufacture of manufactured drugs or psychotropic substances or controlled substances, granted under this Act or any rule or order made thereunder, such power shall be exercised by an officer not below the rank of sub-inspector:
 
     Provided further that] if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.
 
 	(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior]
 
Section 50 of N.D.P.S. Act. 
 
Conditions under which search of persons shall be conducted.-
 
(1) When an officer duly authorized under 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 referred 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 authorized 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).

(6) After a search is conducted under sub-section (5), the 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.]

Section 57 of N.D.P.S. Act.

Report of arrest and seizure.- Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior.

Analysis

12. As per the learned Amicus Curiae has taken plea that there are contradictions in the statement of witnesses due to which the story of prosecution become doubtful.

13. Learned counsel appearing on behalf of State replied that there is no adverse effect of minor contradictions in the statement of witnesses, if otherwise, the prosecution proves its case beyond reasonable doubt, the charge leveled against the accused persons.

14. In my opinion, it was laid down in several judgments of the Hon'ble Supreme Court that there was long gap between the arrest of accused persons and trial of record, even said gap of many years due to which memory of witnesses got fade down, so minor contradictions are no importance. If time of arrest, place and statements of witnesses are an unanimously then minor contradictions does not have any effect of merit.

15. It was submitted that all witnesses produced by prosecution are police officials and therefore, their statements cannot be relied upon and commission of offence by the accused persons cannot be proved on the basis of only statements of police officials.

16. In my opinion, in respect of the said argument advanced by the learned Amicus Curiae that if there is uniformity in evidence of police officials examined by prosecution and if there a conformity of their evidence from available record then the accused can be convicted by relying upon the evidence of police officials examined by prosecution. It is not a rule of law to disbelieve police witnesses. The evidence of police officer is admissible as evidence even, if independent witness are not examined and evidence of police officials shall not be treated as untrustworthy. The evidence of any police officials would not be rejected on the ground that public witnesses have not been examined.

17. It is submitted that Section 42 of N.D.P.S. Act is mandatory in nature. As per Section 42 (I) if prior to alleged of accused and recovery thereof, any information was received earlier to the commission of offence then said information will be recorded in writing by conducting search and seizure, after detaining the accused, the said information has to be immediately sent to superior officials within 72 hours by the officer, who has conducted arrest, search and recovery from the accused. In the present case, such information has not been sent as per Section 42 (i) of N.D.P.S. Act.

18. It is submitted that Section 50 of N.D.P.S. Act was also not complied as per which it should be told to accused persons that it is your legal right that your search be conducted before any Magistrate or Gazetted Officer. In the present case, the accused persons were told that their search will be conducted by Magistrate or Gazetted Officer but they were not told their search before Magistrate or Gazetted Officers are their legal right. Therefore, Section 50 of N.D.P.S. Act has not been complied.

19. In the present case Sections 52 and 57 of N.D.P.S. Act were not complied and independent witnesses produced by the prosecution to support the prosecution story. The counsel appearing on behalf of State stated that police party tried their best to produce independent witnesses but no person from general public is ready to become a witness of this case. In this respect, fact emerged out from the analysis of the evidence that police officials tried to natural witnesses from general public which gathered at the spot of incident but scattered when they were asked to become witness.

20. In the present case, the accused persons were searched by the Constables. Such search by constables is contradictory to provisions of Section 41 of N.D.P.S. Act which is not justifiable in the eyes of law. The counsel appearing on behalf of State clarified that the entire police team was at the spot and proceedings were done in the consolidated manner by whole police team which also includes Assistant Commandant, S.S.B. and other employees and such proceedings were being done by the police officials with the consent of the accused persons and the contraband material was recovered.

21. The learned Amicus Curiae submitted that the alleged contraband material was not sent for examination as per Rules and report of Forensic Science Laboratory which has not been proved.

22. Now the sole question which arises for consideration in this Jail Appeal is whether the search/recovery made by the police officers from the appellants-accused persons of the alleged contraband (Charas) can be held in accordance with the procedure prescribed under N.D.P.S. Act.

23. In the State of Punjab vs. Baldev Singh, 1999 (6) SCC 172, the Hon'ble Supreme court held that:

"Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when 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 before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought before such a 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 person to be searched, otherwise he shall direct that the search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Vide Section 51, the provisions of the Code of Criminal Procedure, 1973, shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Thus, the NDPS Act, 1985 after incorporating the broad principles regarding search, seizure and arrest etc. in Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the Code of Criminal Procedure shall apply insofar as they are not inconsistent with the provisions of the NDPS Act. The expression insofar as they are not inconsistent with the provisions of this Act occurring in Section 51 of the NDPS Act is of significance. This expression implies that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under NDPS Act also except to the extent they are inconsistent with the provisions of the Act. Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singh's case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualize that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ? Learned counsel appearing for the State of Punjab as also the learned counsel appearing for the State of Gujarat argued that it would not be proper to read into the provisions of Section 50, any legislative intent of prescribing a duty on the part of the empowered Officer to inform the suspect that if he so requires, the search would be conducted before a Gazetted Officer or a Magistrate, as the case may be. According to the learned counsel, the view expressed in State of Punjab v. Balbir Singh (supra), laying down that it is obligatory on the part of such an officer to so inform the person to be searched or if such person requires, failure to take him for search before the Gazetted Officer or the Magistrate, would amount to non- compliance with the provisions of Section 50 and would affect the prosecution case and vitiate the trial requires reconsideration. As a matter of fact, the order of the referring bench itself, centers around whether there is any requirement of Section 50, making, it obligatory for the empowered officer, who is about to search a person, to inform him of his right of being taken to the nearest Gazetted Officer or nearest Magistrate for making the search if he so requires. Learned counsel for the parties, however, agree that in case the obligation to inform the suspect of his right to be searched before a Gazetted Officer or a Magistrate is read as a duty cast on the empowered officer, then failure to give information regarding that right to the suspect would be a serious infirmity amounting to denial of a valuable right to an accused and would render his conviction for an offence under the NDPS Act bad and unsustainable. The question as to what is the effect of non-compliance with the provisions of Section 50 on the recovery of the contraband was answered in State of Punjab v. Balbir Singh (supra). The common question which arose for consideration in a batch of appeals filed by the State of Punjab was whether any arrest or search of a person or search of a place conducted without conforming to the provisions of the NDPS Act would be rendered illegal and consequently vitiate the conviction? The Trial Court in those cases had acquitted the accused on the ground that the arrest, search and seizure were conducted in violation of some of the relevant and mandatory provisions of the NDPS Act. The High Court declined to grant appeal against the order of acquittal. The State of Punjab thereupon filed appeals by special leave in this Court. In some other cases, where the accused had been convicted, they also filed appeals by special leave questioning their conviction and sentence on the ground that their trials were illegal because of non-compliance with the safeguards provided under Section 50 of the NDPS Act. A two-Judge Bench speaking through K. Jayachandra Reddy, J. considered several provisions of the NDPS Act governing arrest, search and seizure and, in particular, the provisions of Sections 41, 42, 43, 44, 49, 50, 51, 52 and 57 of the NDPS Act as well as the provisions of the Code of Criminal Procedure relating to search and seizure effected during investigation of a criminal case. Dealing with Section 50, it was held that in the context in which the right had been conferred, it must naturally be presumed that it is imperative on the part of the officer to inform the person to be searched of his right that if he so requires he shall be searched before a Gazetted Officer or Magistrate and on such request being made by him, to be taken before the Gazetted Officer or Magistrate for further proceedings. The reasoning given in Balbir Singh's case was that to afford an opportunity to the person to be searched if he so requires to be searched before a Gazetted Officer or a Magistrate he must be made aware of that right and that could be done only by the empowered officer by informing him of the existence of that right. The Court went on to hold that failure to inform the person to be searched of that right and if he so requires, failure to take him to the Gazetted Officer or the Magistrate, would mean non-compliance with the provisions of Section 50 which in turn would affect the prosecution case and vitiate the Trial. The following conclusions were arrived at by the two-Judge Bench in State of Punjab v. Balbir Singh (supra) : The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows :

(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of Cr.P.C. and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.

(2-A) Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

(2-B) Under Section 41(2) only the empowered officer can give the authorization to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of Cr.P.C. fails to strictly comply with the provisions of Sections 100 and 165 Cr.P.C. including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorized officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of Cr.P.C. namely Sections 100 and 165 Cr.P.C. and if there is no strict compliance with the provisions of Cr.P.C. then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorized officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact. (Emphasis ours) (6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

24. In the Vijaysingh Chandubha Jadeja vs. State of Gujarat, 2011 (1) SCC 609, the Hon'ble Supreme court held that:

"12.The NDPS Act was enacted in the year 1985, with a 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 cases and, therefore, we feel that it is not necessary to delve upon this aspect all over again, except to re-emphasize that 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. Moreover, having regard to the terms of reference to the larger Bench, extracted above, it is equally unnecessary to 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.

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) is extracted in full. It reads as under:

"50. Conditions under which search of persons shall be conducted.--(1) When any officer duly authorized under 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 referred 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 authorized 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).

(6) After a search is conducted under sub-section (5), the 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."

15.Sub-section (1) of the said Section provides that when 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 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 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 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 authorized 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 authorized 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 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 requires" 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 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."

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 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, 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, 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 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. 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 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 authorized 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 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 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-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 Karnail Singh Vs. State of Haryana13. 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 been taken away completely. The Court observed :-

"Through this amendment the strict procedural requirement as mandated by Baldev Singh case was avoided as relaxation and fixing of the reasonable time to send the record to the superior official as well as exercise of Section 100 Cr.P.C. 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 (2009) 8 SCC 539 to balance an urgent situation. As a consequence the mandate given in Baldev Singh case is diluted."

22.In view of the foregoing discussion, 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 minimize the allegations of planting 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 searched 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 authorized officer under sub-section (1) of Section 50 of the 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. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll14, 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 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 read into the mandate of the said Section in Joseph 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 the procedure prescribed has been followed and the 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 Magistrate but in order to impart 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 (1974) 2 SCC 33 the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

25. In the case of Ashok Kumar Sharma vs. State of Rajasthan, 2013 2 SCC 67, the Hon'ble Supreme court held that:

"7. We are in this case concerned only with the question whether PW1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five Judge Bench. This Court in Vijaysingh Chandubha Jadeja (supra) answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate. This Court also held that it is mandatory on the part of the authorized officer to make the accused aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW1 assumes importance, which reads as follows:

"He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in written and said that I have faith on you, you can search me. Fard regarding apprising and consent is Ex.P- 3 on which I put my signature from A to B and the accused put his signature from C to D. E to F is the endorsement of the consent of the accused and G to H is signature, which has been written by the accused."

8. We may, in this connection, also examine the general maxim "ignorantia juris non excusat" and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Indisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various law laid down in this country i.e. leave aside the NDPS Act. We notice this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorized officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure.

9. We are of the view that non-compliance of this mandatory procedure has vitiated the entire proceedings initiated against the accused- appellant. We are of the view that the Special Court as well as the High Court has committed an error in not properly appreciating the scope of Section 50 of the NDPS Act. The appeal is, therefore, allowed. Consequently the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside. The accused-appellant, who is in jail, to be released forthwith, if not required in connection with any other case."

26. In the case of Narcotics Control Bureau vs. Sukh Dev Raj Sodhi, 2011 6 SCC 392, the Hon'ble Supreme court held that:

"4. The obligation of the authorities under Section 50 of the NDPS Act has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed. CRIMINAL APPEAL NO. 1079 OF 2002 .3.

5. From the perusal of the conclusion arrived at by this Court in Vijaysinh Chandubha Jadeja's case, it appears that the requirement under Section 50 of the NDPS Act is not complied with by merely informing the accused of his option to be searched either in the presence of a gazetted officer or before a Magistrate. The requirement continues even after that and it is required that the accused person is actually brought before the gazetted officer or the Magistrate and in Para 32, the Constitution Bench made it clear that in order to impart authenticity, transparency and creditworthiness to the entire proceedings, an endeavour should be made by the prosecuting agency to produce the suspect before the nearest Magistrate."

27. Keeping in view, the aforementioned principles of law laid down by this Court and fact of the case, I have to examine the question arising in this case as to whether the prosecution followed the mandatory procedure prescribed under Section 50 of N.D.P.S. Act while making search and recovery of the contraband (Charas) from the appellants, and if so whether it was done in the presence of Magistrate or Gazetted Officer, so as to make search and recovery of contraband (Charas) from the appellants informity with the requirements of Section 50.

28. In our considered view, the evidence adduced by the prosecution neither suggested nor proved that search of recovery which was made from the appellants in the presence of either a Magistrate or a Gazetted Officer. The appellants were not apprised of their rights and also the appellants were not apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer. The court below came to a conclusion that since the appellants gave their consent to be searched by a police officers (raiding party), therefore, the court below came to the conclusion that the requirements of Section 50 stoodfully complied with and hence, the appellants were liable to be convicted for the offence punishable under the N.D.P.S. Act.

Conclusion

29. I do not agree to this finding of the court below as in my opinion a search and recovery made from the appellants of the alleged contraband (Charas) does not satisfy the mandatory requirements of Section 50 as held by the Hon'ble Supreme Court in the case of Vijay Singh Chandubha Jadeja (supra). This I say for the following reasons:

(i) It is an admitted fact emerging from the record of the case that the appellants were not produced before any Magistrate or Gazetted Officer.

(ii) It is also an admitted fact due to the aforementioned first reason the search and recovery of the contraband (Charas) was not made from the appellants in the presence of any Magistrate or Gazetted Officer.

(iii) The appellants were not informed his legal right as per Section 50 that they only be searched by the Magistrate or Gazetted Officer.

(iv) It is also an admitted fact that the police officers, who recovered the contraband (Charas) from him was not Gazetted Officer nor they could be and, therefore, they are not empowered to make search and recovery from the appellants of the contraband (Charas) as provided under Section 50 of the N.D.P.S. Act except in the presence of either a Magistrate or a Gazetted Officer.

(v) In order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of N.D.P.S. Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellants in the presence of Magistrate or Gazetted Officer.

30. For the aforesaid reasons, I am of the considered opinion that the prosecution was not able to prove the search and recovery of the contraband (Charas) made from the appellants was in accordance with the procedure prescribed under Section 50 of the N.D.P.S. Act. Since the incumbent of the mandatory procedures prescribed under the N.D.P.S. Act is fatal to the prosecution case and in this case, I have found that the prosecution has failed to prove the compliance as required in law, the appellants is entitled to claim its benefit to seek their acquittal.

31. Therefore, in the light of the foregoing discussions, the present jail appeal succeeds and is allowed. The impugned judgment and order dated 28.04.2017, passed by the Additional Session Judge/Special Session Judge (SC/ST P.A. Act), Siddharthnagar, in S.T. No.10/2012 is set aside as a consequence thereto the appellants conviction is set aside and they are acquitted from the charge leveled against them. The appellants are in jail, they be released forthwith, if they are not required in other crime/case.

32. The Registry is directed to send a certified copy of the judgment with all original documents to the court below for compliance.

33. The learned Amicus Curiae Dr. Abidab Syeed shall be paid Rs.10,000/- f0or providing valuable assistance to the Court from the fund of State Legal Services Authority.

Order Date :-10.07.2018

Jitendra