Azeem Hussain vs State Of Delhi
2009 Latest Caselaw 4761 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      Crl.A.492/1999
                       Reserved on:      28th October, 2009
%                      Date of Decision: 23rd November, 2009
#     AZEEM HUSSAIN                               ..... Appellant

!                           Through: Mr. K.B. Andley, Sr. Adv.
                            with Mr.Shamikh, Adv.
                       Versus

$     STATE OF DELHI                             ..... Respondent

^                            Through: Mr. R.N. Vats, APP
*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.     Whether the Reporters of local papers
             may be allowed to see the judgment?              Yes

      2.     To be referred to the Reporter or not?           Yes

      3.     Whether the judgment should be
             reported in the Digest?                          Yes

: V.K. JAIN, J.

1. This is an appeal against the Judgment dated 9th

August, 99 and Order On Sentence dated 11th August, 1999,

whereby the appellant was convicted under Sections 21 of NDPS

Act and was sentenced to undergo RI for 10 years and to pay a

fine of Rs. 1,00,000/- or to undergo RI for 1 year in default of

payment of fine.

2. The case of the prosecution, in brief, is that on

13.6.97, the appellant was apprehended at Bus Stand, Welcome,

G.T. Road, pursuant to a secret information received by the

police. A notice under Section 50 of NDPS Act was given to him

offering him to be searched before a Gazette Officer or a

Magistrate. The offer having been declined, the appellant was

searched by the police officials and 60 gms of smack was

recovered from the right site pocket of his pant.

3. The prosecution examined 9 witnesses in support of

its case. 2 witnesses were examined in defence. PW-8 SI Prem

Chand has stated that on 13.6.97, he received an information

that a person named Azeem, who indulged in sale of smack

would be coming to bus stand G.T. Road, Welcome, to supply

smack. He thereupon organized a raiding party and reached the

spot. Some passersby were requested by him to join the raiding

party, but, no one agreed. At about 3.20 pm, the appellant was

apprehended while sitting on the bus stop. Notice under Section

50 of NDPS Act, Ex. PW-1/A, was given to him explaining to him

that they had information that he was having smack in his

possession and if he so desired, his search could be conducted

before a Gazette Officer or a Magistrate. The appellant,

however, declined the offer. PW-8 also offered his own search to

the appellant, which was declined by him. Thereafter, he

searched the appellant and found one polythene packet of yellow

colour from the right side pocket of his pant. It contained one

sheet of transparent colour containing light brown colour

powder. On smell, he could make out that it was smack. He

examined the substance with the help of a testing kit and found

it to be smack. 5 gms of the smack was taken as sample. The

remaining smack was put in a different polythene. The parcel

containing sample was give Mark A, whereas the parcel

containing the remaining substance was given Mark B. Form

CFSL was filed and both the parcels were seized after being

sealed with the seal of PCK. The same seal was also put on

CFSL form.

4. The deposition of PW-8 has been corroborated by PW-

1 Ct. Nar Singh, PW-2 Ct. Rudramani. The sample from

Malkhana of the Police Station to CFSL also was taken by the

PW-2 Ct. Rudramani and was deposited there with seals intact

on it. PW-3 HC Bhagwat Dayal was the Moharer Mal Khana with

whom the case property was deposited and by whom the sample

was sent to CFSL on 11th July, 1997.

5. In his statement under Section 313 Cr.P.C., the

appellant denied the alleged recovery from him and stated that

during those days, he was working in a factory located at Z-2-

2/180 from where he was lifted and falsely implicated in this

case.

6. DW-1 Sarbar Ali has stated that the appellant was

working his tailoring show and that on 13th June, 1997 he was

taken by a police official with him. When he did not return, they

went to Police Station Welcome and at about 5.30 pm, the

appellant was told that he was in custody of the Crime Branch.

DW-2 Qamar Ahmad has stated that on 13th June, 1992, the

appellant had lunch with him and then they went for Namaj at

about 1.30 or 1.45 pm. Later on, he was told that the appellant

was in custody of the police.

7. The impugned judgment has been assailed by the

learned counsel for the appellant only on the grounds that there

was breach of the provision of Section 42 and Section 50 of the

NDPS Act.

8. In my view, the provisions of Section 42 of NDPS Act

are not attracted in this case as the appellant was arrested at a

bus stand. This issue came up for consideration before the

Hon‟ble Supreme Court in Ravindran vs. Superintendent of

Customs (2007) 6 SCC 410. In that case, the appellant was

arrested at a bus stand pursuant to an information that he was

carrying drug with him. The Hon‟ble Supreme Court observed

that the appellant was not searched and arrested in exercise of

power of arrest, search and seizure under Section 42 of the Act

which applies to a case where the officers concerned on

information received, or having reason to believe from personal

knowledge that any offence has been committed in relation to

any drug or psychotropic substance etc. and which is kept or

concealed in any building, conveyance or enclosed place may,

between sunrise and sunset, enter into and search any building,

conveyance or place. Noticing that the arrest and seizure took

place at a bus stand and not in any building, conveyance or

enclosed place, the Hon‟ble Supreme Court held that the case

was covered by Section 43 of the Act which did not acquire

information to be taken down in writing and similarly, there was

no requirement that the officer concerned must send a copy

thereof to his immediate official superior within 72 hours. In

view of the above referred authoritative pronouncement of the

Hon‟ble Supreme Court, there is no merit in the contention that

there was breach of the provisions of Section 42 of the NDPS

Act.

9. Section 50 of NDPS Act which requires a authorized

officer to take a person about to be searched under the

provisions of Section 41, 42 and 43 of the Act, if such person so

requires to the nearest gazetted officer of any of the

departments mentioned in Section 42 or to the nearest

Magistrate, without unnecessary delay, has been subject matter

of interpretation by the Hon‟ble Supreme Court in a number of

cases.

10. In State of Punjab vs. Baldev Singh 1999 (6) SCC

172, an argument was raised that the accused suspect is merely

to be informed as to whether he prefers to be searched in the

presence of the Magistrate or the Gazetted Officer and that it is

not necessary that he should be informed of his right under

Section 50 of the NDPS Act. This plea was negatived by the

Constitution Bench holding inter alia as under:

"We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in presence of a Gazetted Officer or a Magistrate, if he so requires, would place any premium on ignorance of law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a `reasonable, fair and just procedure'."

"57. (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;" (emphasis added)

11. In Beckodan Abdul Rahiman vs. State of Kerala

2002 SCC (Cri) 791, the accused was asked "whether I should

search him in the presence of senior officers of a gazetted

officer". It was held that the provisions of Section 50 of NDPS

Act had not been complied with as the accused had not been

given any option as to whether he wanted to be searched in the

presence of a Gazetted Officer or a Magistrate. It was held that

the accused was not shown to have been apprised of his right

nor any option offered to him for search being conducted in the

presence of the Magistrate.

12. In Vinod vs. State of Maharashtra, the Trial Court

noticed that both in the complaint and in the panchnama it was

mentioned tht prior to search of his person an understanding

was given to the original appellant that if he desires, his search

will be taken in the presence of an Executive Magistrate or a

Gazetted Officer and the appellant replied in the negative.

However, in the course of evidence PW-87 Bapu Bhosle did not

state this fact and the two panch witnesses who were also

signatories to the panchnama did not support the case of the

prosecution. The Hon‟ble Supreme Court held that:

"Before conducting the search the police officer concerned cannot merely ask the accused whether he would like to be produced before an Executive Magistrate or a Gazetted Officer for the purpose of the search but inform him of his right in that behalf under the law."

13. In K. Mohanan vs. State of Kerala (2000) 10 SCC

222, the Hon‟ble Supreme Court inter alia observed as under:

"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 PW-1 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 defence adopted by the appellant at all stages was that Section 50 was not complied with."

14. In Smt. Arisa Begum Vs. The State in Crl.A.

No.3/2001, decided on 12th January, 2009, the appellant was

informed that if she so wished her search could be conducted in

the presence of the Government officer or a Gazetted officer and

the arrangement could be made for the same. A learned Single

Judge of this Court held that there was a breach of provisions of

Section 50 of NDPS Act.

15. In Joseph Fernandez vs. State of Goa 2000 (1) SCC

707, a Three-Judges Bench of Hon‟ble Supreme Court dealt with

a case in which the searching officer informed the accused that

"if you wish you may be searched in the presence of a Gazetted

Officer or a Magistrate". It was held that it was in substantial

compliance with the requirement of Section 50 of the NDPS Act.

The Court did not agree with the contention that there was non-

compliance with the mandatory provisions, contained in Section

50 of NDPS Act.

16. In Prabha Shankar Dubey v. State of M.P. (2004)

2 SCC 56, the following information was conveyed to the

accused:-

"By way of this notice, you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any gazetted officer or by a Magistrate?"

This was held to be substantial compliance of Section 50 of the

NDPS Act. The Hon‟ble Supreme Court took the view that

whether the requirement of Section 50 has been met is a

question which is to be decided on the fact of each case and

there cannot be any sweeping generalization and/or a

straitjacket formula. The Hon‟ble Supreme Court held that no

specific words are necessary to be used to convey the existence

of the right. It was further held that the accused has to be told

in a way that he becomes aware that the choice is his and not of

the concerned officer even though there is no specific form. It

was felt that the use of word „right‟ at relevant places in the

decision of Baldev's case (supra) seems to be to lay effective

emphasis that it is not by the grace of the officer, the choice has

to be given but more by way of the right in the suspect at this

stage to be given such a choice and inevitable consequences that

have to follow by transgressing it. The Hon‟ble Supreme Court

was of the view that a line or a word in judgment cannot be read

in isolation or as if interpreting the statutory provisions, to

impugn a different meaning to the observations.

17. In Krishna Kanwar vs. State of Rajasthan (2004) 2

SCC 608, this question again came up for consideration before

the Hon‟ble Supreme Court and it was noted that there is no

specific form prescribed or initiated for conveying the

information required to be given under Section 50 of the NDPS

Act. The Hon‟ble Supreme Court inter alia held as under:

"What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the Section itself. 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 strait- jacket formula."

18. In Vijaysinh Chandubha Jadeja vs. State of

Gujarat (2007) 1 SCC 433, a Three Judges Bench of the Hon‟ble

Supreme Court noticing the above referred conflicting decisions

of the Supreme Court felt that the matter requires some

clarification by a larger Bench. During the course of argument, I

was informed that the larger Bench has not been constituted as

yet.

19. I now examine the notice given to the appellant in the

light of the above referred decisions on the subject. The notice

given to the appellant, if translated in English, reads as under:-

"Azim Hussain, S/o Hashmat Husain, R/o Z-II/180, Welcome, Delhi.

"You are vide this notice informed that we have information that you have smack with you and your search is to be carried out. If you so want, a gazetted officer or a Magistrate can be arranged for your search."

The appellant gave a written reply to the notice which, if

translated in English, reads as under:-

"I have understood the notice. I do not want my search to be conducted before a Magistrate or a gazetted officer. You can conduct my search."

20. In his statement under Section 313 Cr.P.C., the

appellant denied the notice given to him and took the stand that

the reply was obtained forcibly on a blank paper. Thus, this is

not the case of the appellant that though the notice Ex. PW-1/A

was given to him, he did not understand it as a communication

of his right to be searched before a Magistrate or a gazetted

officer or that he took it as an act of grace by or choice of the

Authorized officer. He does not say that had he been explicitly

told that he had a right to be searched in the presence of a

Magistrate or a gazetted officer, he would have opted for search

in the presence of a Magistrate or a gazetted officer.

21. When a person is told that if he so desires, a

Magistrate or a police officer can be arranged for his search, he

is thereby given an option, at his choice, to be searched in the

presence of a gazetted officer or a Magistrate. Once this option

was conveyed to the appellant, the choice rested with him to

decide whether to seek search before a gazetted

officer/Magistrate or to get himself searched by the Authorized

officer. If he chose not to seek search before a

Magistrate/gazetted officer, despite having an option to do so,

no fault can be found with the search conducted by the

Authorized officer. The notice given to the appellant coupled

with the written reply given by him, when examined in the light

of his statement under Section 313 Cr.P.C., leads to the

conclusion that there was substantial compliance with the

provisions of Section 50 of NDPS Act and the appellant chose

not to avail the option given to him, despite his having an

opportunity to do so. As noticed by the Hon‟ble Supreme Court

in the case of Prabha Shankar Dubey (supra) whether

requirement of Section 50 has been complied with or not is to be

decided on the facts of each case and there cannot be any

general formula to be applied in such cases. In case of Prabha

Shankar Dubey (supra), the appellant was asked whether he

would like to be searched by any gazetted officer or a

Magistrate. In the present case, the notice given to the

appellant was much more explicit as he was told that if he so

desires a gazetted officer or a Magistrate can be arranged for

his search. Therefore, applying the decision of the Supreme

Court in the case of Prabha Shankar Dubey (supra), it cannot

be said that there was breach of the provisions of Section 50 of

NDPS Act in this case. The notice given to the appellant in the

case of Vinod (supra) as well as the notice given to the

appellant in the case of Beckodan Abdul Rahiman (supra) was

different from the notice given in this case. In neither of these

cases, the appellant was told that a Magistrate or a gazetted

officer could be arranged for his search, if he so desired.

Therefore, decisions in this case are of no help to the appellant.

The notice given to the appellant in the case of K. Mohanan

was also different from the notice given to the appellant in this

case. Therefore, that judgment also does not apply to the facts of

this case.

22. For the reasons given above, I hold that there has

been no breach of the provisions of the Section 42 or Section 50

of the NDPS Act. No other submission was made by Shri K.B.

Andley, learned senior counsel for the appellant. The appeal

therefore has no merit and is hereby dismissed.

(V.K.JAIN) JUDGE NOVEMBER 23, 2009/bg