Parveen Singh @ Kalia vs State Of N.C.T. Of Delhi
2010 Latest Caselaw 5132 Del

$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CRL.A. 493/1999
                         Decided on 11th November, 2010

        PARVEEN SINGH @ KALIA                   ..... Appellant
                     Through: Mr. Jayendra Sevada, Advocate.

                          versus

        STATE OF N.C.T. OF DELHI                 ..... Respondent
                       Through: Mr. Manoj Ohri, APP for the State.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

        1. Whether the Reporters of local papers may
           be allowed to see the judgment?                        Not necessary

        2. To be referred to Reporter or not?                     Yes

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

MUKTA GUPTA, J. (ORAL)

By the impugned judgment dated 23rd July, 1999 passed by the learned

Special Court, the Appellant has been convicted for the offence punishable

under Section 21 NDPS Act and directed to undergo a sentence of Rigorous

Imprisonment for 10 years and a fine of `1 lakh, in default of payment of fine,

to undergo Simple Imprisonment for one year.

Briefly the prosecution case is that there was certain information prior to

14th July, 1998 with regard to some persons indulging in the business of

narcotics supply and supporting the terrorists. On 14th July, 1998 there was an

information at about 4.30 P.M. that one Bishan Singh who is indulging in the

business of narcotics will come along with his associates to distribute smack.

This information was recorded vide D.D. No. 17 exhibited as Exhibit PW11/A.

The information was passed on to ACP Amrik Singh Bhuller on telephone and a

raiding party was constituted which departed vide D.D. No. 18 exhibited as

Exhibit PW11/B. On reaching Sarvodya School at 5.30 P.M. the team requested

4/5 public persons to join the raiding party but none agreed. At about 6:30 pm

on the pointing out of the informer, three persons namely Bishan Singh, Mohd.

Anwar and Praveen the present Appellant, coming on scooter No. DL 8 SH

5512, were stopped. The Appellant was driving the two wheeler scooter. All

the accused persons were informed by the police officer that they had

information about possession of smack and if they want they could take the

search of the police officer. It was also informed that if they want their search

can be conducted before a Gazetted Officer or Magistrate and a notice under

Section 50 Ex. PW6/A was served on the Appellant. However they declined.

The ACP was called who reached the spot at about 7.00 P.M. and was apprised

of the facts. On the direction of the ACP, Inspector Bharat Singh took search of

Inspector Babu Singh whereafter the search of the Appellant and the other

accused was conducted by Inspector Babu Singh. On checking, 15 packets of

10 grams each of heroin were recovered from the right side pocket of the pant

of the Appellant. After completion of the proceedings the Appellant and the co-

accused persons were arrested. On a charge sheet being filed all the three

accused were tried. The witnesses were examined and the abovementioned

notices and documents were exhibited whereafter the Appellant and other co-

accused Mohd. Anwar have been convicted, however co-accused Bishan Singh

absconded during trial and has been declared as proclaimed offender.

Learned counsel for the Appellant contends that the Appellant is entitled

to be acquitted on the short ground that the Section 50 notice served on the

Appellant is not in terms of the provisions of the Act and as per the law laid

down by the Hon'ble Supreme Court. It is contended that in K. Mohanan vs.

State of Kerala, 2000 SCC (Cri) 1228 the Hon'ble Supreme Court clearly held

that as per the mandate of Section 50 if the accused who is subjected to search is

merely asked whether he is required to be searched in the presence of a

Magistrate or a Gazetted Officer it cannot be treated to be a communicating to

him that he had a right under law to be searched so. It is contended that neither

does the Section 50 notice nor the testimony of the PW11 who is the

investigating officer suggest that the Appellant was informed of any such right.

Learned APP for the State on the other hand relying on Prabha Shankar

Dubey vs. State of Madhya Pradesh, 2004 (2) SCC 56 contends that under

Section 50 of the NDPS Act no manner or mode is prescribed and the Court has

not to see the manner but in essence the form and substance whether in fact, the

accused had been informed of his right in terms of Section 50 of the NDPS Act.

In Vijaysinh Chandubha Jadeja vs. State of Gujarat,

MANU/SC/0913/2010, the issue whether the accused has to be informed that he

can exercise his discretion to be searched in the presence of a Magistrate or a

Gazetted Officer or he is to be informed that he has a right to be searched in the

presence of a Magistrate or a Gazetted Officer and if he so desires then the

search would be taken in the presence of a Magistrate or a Gazetted Officer, has

been laid to rest. The Constitution Bench in the above noted reference decided

on 29th October, 2010 held as under:

"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under Sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed In Re: Presidential Poll MANU/SC/0047/1974 : (1974) 2 SCC 33, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." 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 (supra) and Prabha Shankar Dubey (supra) 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's case (supra). 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. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

The Section 50 notice in the present case states that since there is an

information as to the possession of heroin and he has been apprehended and is

required to be searched, if he so desires he can first take the search of the Police

party. On refusal, the Appellant was asked that if he so desire then his search

can be taken before a Magistrate or a Gazetted Officer. This was also declined

by the Appellant. A perusal of Exhibit PW6/A, the notice under Section 50 of

the NDPS Act and the testimony of PW11 the Investigating Officer shows that

the Appellant was informed only about the option and not about his right of

being searched before a Magistrate or a Gazetted Officer. The Appellant is thus

entitled to be acquitted.

Appeal is accordingly allowed. The Appellant is acquitted of the charge

framed under Section 21 of the NDPS Act.

MUKTA GUPTA, J.

NOVEMBER 11, 2010 vn