Toye Mobka vs State (Delhi Administration)
1995 Latest Caselaw 774 Del

JUDGMENT

J.K. Mehra, J.

(1) I have heard the parties. This is an appeal directed against the order of conviction dated 16.9.1992, passed by Mr. S.L. Khanna.ASJ. The appellant has been convicted under Sections21/28 read with Section 23 of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentenced to undergo rigorous imprisonment for a term of ten years plus a fine of Rs. I lakh, in default whereof rigorous imprisonment for another one year.

(2) Briefly staling, the facts of the case are that the appellant, who is a Nigerian National, was leaving the country on the night between 20th and 21 st May, 1990 and before his departure, he was apprehended as the Immigration Authorities had the information, according to the Immigration Officer, who has been examined as a witness, that some Nigerian Nationals are trying to smuggle narcotics out of the country. The appellant was searched in the present case straightaway without being informed of his right that he, if he so desired, could be searched in the presence of a Gazetted Officer or a Magistrate. Admittedly, no such caption was given in the present case. There are some other points also urged before me, but it will not be necessary in the light of the above facts to dwell upon those grounds because in my opinion, this appeal can be disposed of on the question of non-compliance of the mandatory provisions of Section 50 of Ndps Act by the officers, who took a personal search of the appellant. Section 50 of Ndps Act reads as under :

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

(3) According to provisions of Section 50, the accused must be informed of his right, and if he so wishes, he can be searched in the presence of the Gazetted Officer or the nearest Magistrate. It is not disputed that no such information by a written notice or otherwise as contemplated under Section 50 of Ndps Act, was given to the appellant. Even fard jamatalashi is vague and silent of such an option having been offered. In the case of State of Punjab v. Balbir Singh, reported as , the Hon'ble Supreme Court has held that it was imperative on the part of the officer intending to search, to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. The Hon'ble Supreme Court has held this provision to be mandatory.

(4) In another case of Satish & Bombaiya v. State, reported as where a limited option of being searched before Gazetted Officer was given, this Court has held that there was a non compliance of mandatory provision of the Act and the consequent conviction of the accused was set aside. I am in agreement with the ratio of this judgment that a partial option does not amount to compliance with the provisions of Section 50, which have been held by Hon'ble Supreme Court to be mandatory in the case of State of Punjab v. Balbir Singh (supra), must be fully complied with. Same was the situation in the case of Chameli Devi v. State, reported as 1993(2) Chandigarh Criminal Cases 146, which was also a case of partial option and it was held to be amounting to non-compliance with the mandatory provisions of Section 50 of the Act. In the cases of Jagdish Prasad v. State, reported as 1994(3) Ad (Delhi) 113 and Mukesh v. State (Delhi Administration), reported as 1994 (3) Crimes 337 also, the accused was informed that if he wanted, the search could be conducted in the presence of a Gazetted Officer. This option was held to be a partial offer limiting the choice having the effect of non-compliance of die mandatory provisions of Section 50, which resulted in the order of acquittal. In the case of Mohinder Kumar v. State, Panaji, Goa, reported as even in the cases of chance recovery, that is if a Police Officer, without prior information, makes a search and during such search, he stumbles on a chance recovery of a narcotic or psychotropic substance, then from that stage onwards, the investigation must be carried out in accordance with the provisions of the Act including Sections 42 and 50. In the present case, it cannot be held to be a case of such chance recovery.

(5) In the present case even a partial option was never given to the appellant and in view of the judgment of the Hon'ble Supreme Court and the various judgments, referred to hereinabove, the conclusion in die present case is also irresistible that no option was given to the appellant, which does not amount to compliance with the provisions of Section 50 of Ndps Act and such non-compliance would inevitably invite the setting aside of the order of conviction.

(6) In Crl.A. No. 54/91, decided by me on 4th September, 1995,1 had held that even partial option given to the appellant did not amount to compliance with the provisions of Section 50 of Ndps Act and in that view, had set aside the order of conviction. In the present case, admittedly, there was not even a partial compliance, as referred to hereinabove. It was not a case of chance recovery, but a recovery effected on the prior information even though the name of the carrier of narcotics was not available to the Immigration Authorities. But the fact that it was known to them that some Nigerians will be smuggling narcotics out, is clear enough information, which was received prior to the actual alleged recovery. For that reason, the argument that it was an absolute chance recovery and the authorities had no prior information, cannot be accepted.

(7) The result of the above discussion is that the appeal is allowed. The trial is held to have been vitiated on account of non-compliance with the provisions of Section 50 of Ndps Act, the order of conviction and sentence are set aside and the appellant is acquitted of the charges. He would be released forthwith, if not required to be detained in any other case.

(8) A copy of this order be sent to Superintendent, Central Jail.