Kuldip Singh vs Narcotics Control Bureau
1999 Latest Caselaw 977 Del

ORDER

M.S.A. Siddiqui, J.

1. This appeal is directed against the judgment dated 9.12.1996 passed by the Additional Sessions Judge, New Delhi in Sessions Case No. 92/96 convicting the appellant under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the Act') and sentencing him to undergo rigourous imprisonment for 10 years and to pay a fine of Rs.1 lakh or in default to suffer further rigorous imprisonment for six months.

2. Briefly stated, the prosecution case is that on 22nd July, 1996 a raiding party, led by the Superintendent, Narcotics Control Bureau, D.C. Misra (PW-6), upon secret information received, intercepted the appellant on platform No. 2 of Hazrat Nizamuddin Railway Station. The appellant was found holding a suitcase in his hand. He was given the option of being searched before a Magistrate or a Gazetted Officer. The appellant opted to be searched before a Gazetted Officer. Thereupon D.C. Mishra P.W. 6, who was also a Gazetted Officer, took search of the appellant's suit-case in the presence of 'panch' witnesses namely Ramkanwar P.W.4 and Dhan Singh P.W. 5 and recovered 497 grams of heroin therefrom vide seizure memo Ex. PW-3/C. The appellant was charged with an offence punishable under Section 21 of the Act and tried. On an assessment of the evidence, the Additional Sessions Judge convicted the appellant under Section 21 of the Act and sentenced him as indicated above.

3. Though a number of submissions were made by learned counsel for the appellant, I need not detain myself to deal with all those submissions as in my opinion there is force in the main arguments of the learned counsel that on account of the non-compliance with the provision of Section 50 of the Act, the appellant's conviction and sentence cannot be sustained. The evidence of the prosecution pertaining to the recovery of the contraband revolves around the evidence of D.C.Misra (PW-6), Shahid Hussain (PW-7), D.N.Tyagi (PW-3). Intelligence Officer Narcotic Delhi Zone Shahid Hussain (PW-7) testified that on 22nd July, 1996, he received a secret information (Ex. PW-6/A) that a Sikh gentleman with heroin in his possession would be leaving Delhi by Goa Express. Immediately thereafter, he conveyed the said information to his Director. D.C. Mishra (P.W. 6), deposed that on 27.7.1998, pursuant to the information (Ex. PW-6/A), he organized a raiding party consisting of himself and the Intelligence Officers, namely D.N. Tyagi, P.W.3 and Shahid Hussain P.W.7 and proceeded to the H. Nizamuddin Railway Station. He further deposed that the appellant was spotted at platform No. 2 of the said station and was found holding a suitcase in his hand. It is the evidence of D.C. Mishra P.W. 6 that he intercepted the appellant while he was about to board the train bound for Goa and he was given the option of being searched before a Gazetted Officer or a Magistrate. Thereupon the appellant opted to be searched before a Gazetted Officer. On the day in question, he was holding the post of a Gazetted Officer. He, therefore, took search of the appellant's suit case which he was carrying and recovered a packet containing 497 grams of heroin there from vide Seizure Memo Ex. P.W.3/C. It is significant to mention that there is nothing in the evidence of D.C. Mishra (PW-6) to show that he had in-formed the appellant about his status of a Gazetted Officer before taking his search. Thus it becomes clear that the appellant was not searched before a Gazetted Officer in accordance with the option exercised by the appellant under Section 50 of the Act. Learned counsel for the appellant submits that in view of the said evidence, the learned Additional Sessions Judge committed a grave error in holding that the search of the appellant by D.C. Mishra P.W.6, who was a member of the raiding party, was in due compliance with the provision of Section 50. Reference may now be instructively made to Section 50 of the Act, which 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 Gazet-

ted 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."  
 

 4.   A bare reading of Section 50 makes it clear that it mandates that  the empowered  officer  before taking search of the suspect should  inform  him about  his  statutory right to be searched before a Gazetted Officer  or  a Magistrate  and if he so desires, he should be produced before  a  Gazetted Officer  or a Magistrate for taking search. In State of Punjab  Vs.  Baldev Singh, JT 1999 (4) SC 595, it was held that "to be searched before a Gazetted  Officer or a Magistrate, if the suspect so requires, is  an  extremely valuable  right  which the legislature has given to  the  concerned  person having  regard to the grave consequences that may entail the possession  of illicit  articles  under  the NDPS Act". In this context,  I  may  usefully except  the following observations of their Lordships in the case of  State of Punjab Vs. Baldev Singh (supra) :  "To be searched before a Gazetted Officer or a Magistrate, if the      suspect  so  requires, is an extremely valuable right  which  the      legislature  has given to the concerned person having  regard  to      the grave consequences that may entail the possession of  illicit      articles under the NDPS Act. It appears to have been incorporated      in  the Act keeping in view the severity of the  punishment.  The      rationale  behind the provision is even otherwise  manifest.  The      search  before  a Gazetted Officer or a Magistrate  would  impart      much  more authenticity and credit-worthiness to the  search  and      seizure proceeding. It would also verily strengthen the  prosecution  case.  There is, thus, no justification for  the  empowered      officer, who goes to search the person, on prior information,  to      effect  the search, of not informing the concerned person of  the      existence  of  his right to have his search  conducted  before  a      Gazetted Officer or a Magistrate, so as to enable him to avail of      that right. It is, however, not necessary to give the information      to  the person to be searched about his right in writing.  It  is      sufficient  if such information is communicated to the  concerned      person  orally  and as far as possible in the  presence  of  some      independent  and  respectable persons witnessing the  arrest  and      search.  The  prosecution must, however,at the  trial,  establish      that  the empowered officer had conveyed the information  to  the      concerned  person of his right of being searched in the  presence      of  the  Magistrate  or a Gazetted Officer, at the  time  of  the      intended search. Courts have to be satisfied at the trial of  the      case  about  due  compliance with the  requirements  provided  in      Section  50.  No presumption under Section 54 of the Act  can  be      raised against an accused, unless the prosecution establishes  it      to  the satisfaction of the court, that the requirements of  Section 50 were duly complied with." 
 

5. Section 50 itself has been framed by the Legislature thoughtfully by using the precautionary words "take such person" in sub-section (1) and the words "the Gazetted Officer or Magistrate before whom any such person is brought" in sub-section (3). The context envisaged in Section 50 of the Act invites a strict interpretation for the empowered officer, who has the statutory obligation to give an option to the suspect in respect of his search and if he desires that his search should be taken before a Gazetted Officer or a Magistrate that it casts a statutory duty upon him to produce the suspect before a Gazetted Officer or a Magistrate as opted by the suspect. The thrust in the clause is on the need to take such person before a Gazetted Officer or a Magistrate for taking search in accordance with the option exercised by him. Any other interretation can lead to a very tenuous position as the empowered officer who is under a statutory obligation to take such person to the Gazetted Officer or a Magistrate for taking his search would resort to the strategy of subterfuge by successfully defeating the very object of the safeguards provided under Section 50 of the Act. In the State of Punjab Vs. Baldev Singh (supra), it was held that:-

"(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 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 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."

6. It is significant to mention that sub-section (1) of Section 50 of the Act is couched in a mandatory form and it bears repetition that it casts a statutory duty upon the empowered officer to take the accused before a Gazetted Officer or a Magistrate for search in accordance with the statutory option exercised by the accused. It follows that if an accused exercises his statutory option to be searched before a Gazetted Officer or a Magistrate, then Section 50(1) of the Act impliedly prevents the empowered officer from taking search of the accused on the spot. The salutary purpose behind Section 50(1) is to avoid criticism of arbitrary and high-handed action against authorised officers. It has to be borne in mind that a Gazetted Officer belonging to the department whh is effecting a seizure may have bias in favour of the department whereas no such bias can be attributed to a Magistrate or a Gazetted Officer belonging to the other department. Associating a Gazetted Officer with the raiding party makes such officer impliedly interested in the success of the raid. In the instant case, it is undisputed that the raiding party was headed by D.C.Misra (PW-6). Thus, the fact that the authorised Officer D.C. Misra (PW-6) was a Gazetted Officer of the Narcotic Control Bureau would not amount to compliance of requirement of Section 50 of the Act.

7. In Sukh Lal Singh Palav Vs. State of Rajasthan 1996(3) Crimes 194, it was held that a member of the raiding party, even if he is a Gazetted Officer, cannot himself do the dual task of being a party to the search and arrive at a satisfaction that the search is warranted or not. In Babu Rao Vs. State of Karnataka, 1993 Crl. J. 2310, it was held that mere association of a Gazetted Officer with the raiding party would not validate the search in view of the provision of Section 50(1). I am in respectful agreement with the views taken by both the High Courts.

8. For the foregoing reasons, I hold that provisions of Section 50(1) of the Act were not complied with before taking search of the appellant, thus rendering the seizure of the contraband illegal. In State of Punjab Vs. Baldev Singh (supra), it was held that an illicit article seized from the person of an accused during search conducted in violation of Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband against the accused. Consequently, the impugned order of conviction and sentence cannot be sustained.

9. In the result, the appeal is allowed. The orders of conviction and sentence are set aside and the appellant is acquitted of the charge under Section 21 of the NDPS Act. The appellant is in custody, he be set at liberty forthwith if not wanted in any other case. The amount of fine if paid, shall be refunded to the appellant.