Calcutta High Court (Appellete Side)
Mahesh Prasad Jaiswal vs The State Of West Bengal on 1 October, 2024
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE
CRM (NDPS) 1260 of 2024
Mahesh Prasad Jaiswal
Vs.
The State of West Bengal
Before: The Hon'ble Justice Arijit Banerjee
&
The Hon'ble Justice Apurba Sinha Ray
For the Petitioner : Mr. Sabyasachi Banerjee, Adv.
Mr. Pawan Kumar Gupta, Adv.
Ms. Sofia Nesar, Adv.
Mr. Santanu Sett, Adv.
For the State. : Ms. Anasuya Sinha, APP
Ms. Madhumita Basak, Adv.
CAV On: : 23.09.2024
Judgment On : 01.10.2024
Apurba Sinha Ray, J. :-
1.
In praying for bail of the petitioner the learned counsel has
drawn the attention of this court to the order passed in CRM (NDPS)
876 of 2024 on 03.07.2024 wherein the concerned accused person
was granted bail by this Bench as the Gazetted Officer who witnessed
the search and seizure and the arrest, directly supervised the process
of search and seizure. The learned counsel claims parity. He has also
submitted that requirements under Section 50 of NDPS Act, 1985 were
not complied with. Furthermore, the contraband articles which were
allegedly seized at the time of arrest of the accused were not actually
sent to the forensic laboratory for test since the nature and particulars
of the representative sample drawn from the contraband do not match
with the seized contraband.
2. It is further contended that the Hon'ble Supreme Court has laid
down the principles of law in this regard in the case of State of
Rajasthan Vs. Parmanand and Anr. (2014) 5 SCC 345, but the same
was not followed at the time of seizure.
3. Learned counsel for the State vehemently opposes the prayer for
bail. According to her, the requirements laid down in Section 50 of the
NDPS Act, 1985 have been duly complied with and further the
representative samples were correctly drawn from the seized
contraband articles. Whatever submission regarding alleged deficiency
in the seizure list has been made by learned counsel of the petitioner
relates to the first seizure of the contraband articles and they are not
related to the second seizure. There are sufficient incriminating
materials against the present petitioner. Learned counsel for the State
has also submitted that during hearing of the case being no. CRM
(NDPS) 876 of 2024 due compliance under section 50 of NDPS Act,
1985 in connection with the said accused was not brought to the
notice of the court and the order dated 03.07.2024 in connection with
CRM (NDPS) 876 of 2024 was passed without taking into consideration
that such requirements were complied with.
4. We have considered the rival submissions of the learned
counsels of the parties. After perusal of the Case Diary we find that as
per requirement of Section 50 of NDPS Act, 1985 the petitioner was
served with a notice informing him that he had the right to be
searched in presence of a Gazetted Officer or a Magistrate but the
petitioner did not require that his person should be searched in
presence of a Gazetted Officer or a Magistrate and he himself wrote his
comment in Hindi language. Section 50(1) of the NDPS Act is as
follows:-
"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."
5. From the above, it transpires that if the petitioner requires that
his person should be searched in presence of the nearest Gazetted
Officer or the nearest Magistrate, in that event non-compliance of
provision of Section 50 of the Act will come into play if such request of
the petitioner is not respected. But, if the petitioner after knowing that
he has the right to be searched in presence of a Gazetted Officer or
Magistrate does not require to be searched in any of such officers',
presence and if such search is not done in presence of such officer
accordingly, the same cannot be considered as violation of Section 50
of Act, 1985. Several reported decisions, such as State of Rajasthan
V. Ram Chandra (2005) 5 SCC 151 : 2005 SCC (Cri) 1010; see also
Vijaysinh Chandubha Jadeja V. State of Gujarat (2011) 1 SCC 609
: (2011) 1 SCC (Cri) 497 may be referred to for understanding the
issue. The said decisions postulate that Section 50 of the Act 1985 in
reality provides for additional safeguards which are not specifically
provided by the statute. The stress is on the adoption of a reasonable,
fair and just procedure. There is no specific form prescribed or
intended for conveying the information required to be given under
Section 50. What is necessary is that the suspect should be aware of
the existence of his right to be searched in the presence of one of the
officers mentioned in the section. 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 requirements 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 straight jacket
formula in that regard.
5.1. However, application of substantial compliance theory in respect
of Section 50 of the Act, 1985 has been done away with in Vijaysinh
Chandubha Jadeja (supra).
"31. 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 and Prabha Shankar Dubey
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
case. 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."
5.2. In Vijaysinh Chandubha Jadeja (supra) the Apex Court has been
pleased to quote the observations of the Hon'ble Court in connection
with State of Punjab Vs. Baldev Singh (1999) 6 SCC 172 at page no.
619 :-
"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 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 criminal
trial.
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 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."
6. In the State of Rajasthan Vs. Parmanand and Anr. (supra) the
Hon'ble Apex Court has deprecated the system of joint communication
of right available under Section 50(1) of the NDPS Act, 1985 since
according to the Hon'ble Court it would frustrate the very purport of
Section 50. Communication of the said right to the person who is
about to be searched is not an empty formality. It has a purpose. Most
of the offences under the NDPS carry stringent punishment and,
therefore, the prescribed procedure has to be meticulously followed.
The communication of the right under Section 50 has to be clear
unambiguous and individual.
7. In our case, individual notice was served upon the petitioner but
he did not require that he should be searched in the presence of a
Gazetted Officer or Magistrate and he wrote his unwillingness in Hindi.
Therefore, prima facie, it appears that Section 50 of the Act, 1985 has
been complied with.
8. All the above decisions deal with the questions relating to the
duty of the concerned police personnel when the accused expresses
his willingness to be searched in the presence of a Gazetted Officer or
Magistrate. The said decisions do not ponder over the question what
would be the duty of the police personnel when being informed of his
right, the accused to be searched in the presence of a Gazetted Officer
or Magistrate. In this regard, reference may be made to the case law
reported at (2013) 2 SCC 67 (Ashok Kumar Sharma Vs. State of
Rajasthan) wherein, after holding that Vijaysinh Chandubha Jadeja
(supra) lays down the correct law, it has been held:-
"We are of the view that there is an obligation
on the part of the empowered officer to inform
the accused or the suspect of the existence of
such a right to be searched before a gazetted
officer or a Magistrate, if so required by him.
Only if the suspect does not choose to exercise
the right in spite of apprising him of his right,
the empowered officer could conduct the search
on the body of the person."
9. In this case, the agency, at least at this stage, has been able to
show that individual notice upon the petitioner was served and he
intimated in writing that he did not require to be searched in the
presence of a Gazetted Officer or a Magistrate. If there is any deficiency
in complying with the provisions of Section 50(1) of Act of 1985, the
same shall be determined at the time of trial.
10. Moreover, the same reasoning will apply also in respect of the
alleged inconsistency in the seized contraband articles or
representative sample of the contraband. As such question relates to
factual aspects, the same shall also be determined at the time of trial.
Further, be it mentioned here that at the time of passing the order
dated 03.07.2024 in CRM (NDPS) 876 of 2024, neither the State
counsel nor the learned advocate representing the concerned accused
drew our attention to the question of compliance of requirement under
Section 50 of the Act of 1985 and the same was passed without taking
into consideration whether requirements under Section 50 of the Act
1985 were complied with or not.
11. From the materials on record, it transpires that Dysp.
Subhasish Banik was not in the raiding party as alleged by the
petitioner. The record shows that he arrived at the place of occurrence
after the accused persons were detained, and the process of search
and seizure was carried out in his presence. As the accused/petitioner
refused to be searched in the presence of a Gazetted Officer or the
nearest Magistrate, the search and seizure in the presence of Dysp.
Subhashis Banik cannot, at this stage, be held to be violative of the
provisions of Sections 43 and 50 of the NDPS Act, 1985.
12. In view of the above, commercial quantity of contraband items
being involved, we are not inclined to allow the prayer for bail of the
petitioner at this stage.
13. Accordingly, the bail petition stands rejected.
14. Urgent photostat certified copies of this judgment, if applied for,
be supplied to the parties on compliance of all necessary formalities.
I Agree.
(ARIJIT BANERJEE, J.)
(APURBA SINHA RAY, J.)
