Raj Bahadur @ Raju vs State
2002 Latest Caselaw 29 Del

JUDGMENT

R.S. Sodhi, J.

1. This criminal appeal is directed against the judgment and order dated 27.3.1997, of the Additional Sessions Judge, Special Court, NDPS Act, Delhi, in Sessions Case No. 52/95, whereby the learned Judge has held the appellant guilty under Section 20 of the NDPS Act, 1985 and further by a separate order dated 31.3.1997 has sentenced him to undergo R.I. for ten years with a fine of Rs. one lac and in default of payment of fine to further undergo R.I. for one year.

2. Brief facts of the case as recorded by the Additional Sessions Judge are as follows:

"On 10.2.95 at about 3.40 p.m. SI Tarkeshwar Singh was on patrolling duty in Main Bazar, Paharganj. He received a secret information that one Nepali often comes to Diamond Cafe to sell Charas and at that time also he was standing outside the Diamond Cafe waiting for some customer and that he is in possession of Charas which he sells only to foreigners. This information was reduced into writing by SI Tarkeshwar Singh. At about 3.55 p.m. at Munje Chowk he met SHO PS Paharganj Insp, J.L. Sahni. SI Suraj Bhan and Const. Nahar Singh. He discussed the information with the SHO and a raiding party was organized. The police party reached 6 Tuti Chowk and 4/5 public persons were requested to join the raiding party but none agreed. Then at 4.20 p.m. at the pointing out of the secret informer accused Raj Bahadur @ Raju was apprehended and he was informed about the secret information. He was also served with the notices under Section 50, NDPS Act giving him an option to get his search conducted in presence of some G.O. or M.M. On this accused Raj Bahadur ex pressed his desire to be searched in presence of some G.O. and then telephonically ACP Paharganj was informed. The ACP reached the spot and in his presence the police party offered its search to accused Raj Bahadur for which he refused. Then on the direction of ACP Mr. Prabhakar, accused was searched and from the inner pocket of his jacket Charas wrapped in white polythene was recovered. The Charas was weighed and came out to be 1.035 kg. 35 grams Charas was separated as sample. Sample Charas and the remaining Charasa along with white polythene were kept in separate pullandas. One weight box of black colour was also recovered from the accused which was also separately kept in a pullanda. The pullandas were sealed with the seal of TS by SI Tarkeshwar Singh and JLS by SHO Inspr. J.L. Sahni. Form CFSL was filled and the three pullandas along with CFSL form were handed over to the SHO. After preparing the Rukka and the memos a case under Section 20, NDPS Act was registered against accused Raj Bahadur vide FIR No. 77/ 95 and after completion of investigations, he was sent for trial for being found in possession of 1.035 kg, Charas in contravention of 20, NDPS Act, 1985,"

3. The prosecution in order to establish its case examined as many as 8 witnesses. Learned Counsel for the appellant has vehemently argued that there has been a violation of Section 50 of the Act, inasmuch as the accused was not apprised of his rights, namely that such a right existed in law enabling him to exercise it by having his search effected before a Gazetted Officer or Metropolitan Magistrate. Learned Counsel submits that a bare reading of the notice under Section 50 of the Act, PW 4/B, shows that the option given to the accused was couched in such words as did not bring about the vested right clearly to the accused under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or Metropolitan Magistrate. On the other hand, learned Counsel for the State submits that in the present case, the right to be searched was not only explained to the accused orally but also a written notice was served on him and further the accused exercised his option to be searched before a Gazetted Officer which clearly shows that the vested right under Section 50 of the Act, had been exercised by the accused who cannot now claim prejudice, having exercised the same. A bare reading of the notice Exhibit PW 4/B under Section 50 of the NDPS Act served on the accused shows that the accused was apprised of a secret information and was asked whether he wished this search to be effected before a G.O. or M.M. The Investigating Officer PW 8, SI Tarkeshwar Singh, stated as under:

"I served accused Raj Bahadur with notice under Section 50 of NDPS Act Ex. PW4/B explaining to him the secret information with me and telling him that in case he wanted his search could be conducted in the presence of some GO or MM and I also told the accused that his search could be taken in the presence of our ACP who was a Gazetted Officer. Accused in reply desired that his search may be conducted in the presence of some Gazetted Officer. Accused Raj Bahadur put his signatures on notice Ex. PW 4/B at point B which I identify."

4. To the same effect is the deposition of PW 7, Inspector J.L. Sawhney, who says that:

"SI Tarkeshwar then told the secret information to accused Raj Bahadur and also showed him the memo Ex. PW 4/A and then served him with written notice under Section 50 of the NDPS Act. Accused was also told whether he wanted to call some Gazetted Officer or MM for his search and accused replied that Gazetted Officer should be called."

5. From the statement of both these witnesses it appears that the accused was not explained in so many words that he had a right to be searched before a Gazetted Officer or Metropolitan Magistrate. Abbreviations were used in Notice under Section 50 of the Act, Ex. PW 4/B as also in the oral explanation of the notice rendered by the witnesses to the accused. The Supreme Court in K. Mohanan v. State of Kerala, has held that:

"If the accused, who was subjected to search was merely asked whether he required to be searched in the presence of a Gazetted Officer or a Magistrate it cannot be treated as communicating to him that he had a right under law to be searched so. What PW1 has done in this case was to seek the opinion of the accused whether he wanted it or not. If he was told that he had a right under law to have it (sic. himself) searched what would have been the answer given by the accused cannot be gauged by us at this distance of time. This is particularly so when the main defense adopted by the appellant at all stages was that Section 50 of the Act was not complied with."

6. Counsel for the State draws my attention to a judgment or the Supreme Court in Sajan Abraham v. State of Kerala, , laying down that a written notice is not necessary and an oral explanation is good enough. There is no quarrel with the preposition laid down by the Supreme Court. The meat of the matter is whether the accused was apprised of his rights or not. In the present case, I am of the opinion that the accused was not apprised of his legal rights and, therefore, was prejudiced in exercising his options. Further, the use of abbreviations of G.O. and M.M. to an illiterate, makes the exercise of vested rights illusory. In this view of the matter, Section 50 being a mandatory provisions violation would vitiate the conviction. I, therefore, hold that mandatory provisions of Section 50 of the NDPS Act, stood violated and the conviction of the appellant stands vitiated. The judgment and order of the Additional Sessions Judge, Special Court, NDPS Act, Delhi, dated 27.3.1997, is set aside.

Crl. A. 434/1997 is allowed.

7. The appellant shall be set at liberty forthwith, if not wanted in any other case.