Delhi High Court

Roshni Devi vs State on 7 February, 2011

Author: Ajit Bharihoke

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment delivered on: February 07, 2011

+      CRIMINAL APPEAL NO. 140/2000

       ROSHNI DEVI                               ....APPELLANT
               Through:       Mr. Raman Sahney, Advocate

                       Versus

       STATE                                        .....RESPONDENT

Through: Ms. Fizani Husain, APP

CORAM:

HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

AJIT BHARIHOKE, J.(ORAL)

1. This appeal is directed against the impugned judgment dated

12th January, 2000 in Sessions Case No. 43/1999, FIR No. 8/98, P.S.

Narcotic Branch Kamla Market and consequent order on sentence

dated 13th January, 2000, whereby the appellant Roshni Devi has

been convicted under Section 21 of the NDPS Act and sentenced to

undergo RI for the period of 10 years and also to pay fine of Rs. One

Lakh, in the event of default of payment of fine, to undergo further

SI for a period of two years.

2. Briefly stated, facts relevant for disposal of this appal are that

on 31st March, 1998 at about 01.00 p.m., ASI Satbir Singh received a

secret information that a woman named Roshni R/o B-54, J.J.Colony,

Delhi was selling smack in front of her house. This information was

reduced into writing as DD No. 18 and it was conveyed to SHO

Inspector P.Chaubey and ACP R.P.Mehta, who directed to organize a

raid immediately. Raiding party comprising of SI Prem Chand, Head

Constable Bharat Singh, Head Constable Ishwar Dayal, Constable

Daya Nand, Constable Surinder, Constable Reet Mahinder and Lady

Constable Nirmala were constituted who left for the spot in a

government gypsy. The vehicle was parked at some distance and

few passersby were requested to join the raiding party but all of

them had left. Without wasting time anymore, the raiding party

reached there at House No. B-54, J.J.Colony, Wazirpur, Delhi and

found the appellant Roshni Devi in front of aforesaid house. She

was apprehended. It was explained to her that raid party had

information that she was in possession of smack and she was served

with the notice of Section 50 of the NDPS Act, 1985 to the effect that

her search in that regard was necessary and if she so desired, her

search could be taken either before a Gazetted Officer or a

Magistrate but the appellant declined the offer and stated that she

may be searched by any lady officer. Thereupon, Lady Constable

Nirmala was asked to conduct search of the appellant and upon her

search, a red colour purse of the cloth was recovered with a rope

and on checking, the purse was found to contain small packets

containing smack besides Rs. 1700/-. The packets were found to

contain light brown colour powder which was weighed and found to

be 20 grams in all. Five grams out of same was drawn as sample

and converted into a sealed packet and remaining smack was put

into a polythene bag and converted into a sealed packet. The

sample packet was marked as A and remaining smack packets were

marked as B. Form CFSL was filled and the aforesaid packets and

form CFSL duly sealed with the seal of "SS" were handed over to SI

Prem Chand. 'Rukka' was prepared and sent to the police station

for the registration of the case along with the case property through

Constable Reet Mahinder. The SHO also affixed his seal "P.C." on

both the packets as well as on form of CFSL and deposited the same

with MHCM „Malkhahana'. Sample packets were specifically sent to

CFSL for analysis and on analysis, it gave positive test for smack.

3. On completion of investigation, charge sheet was filed and

learned Special Judge charged the appellant for the offences

punishable under Section 21 of the NDPS Act. The appellant

pleaded not guilty to the charge and claimed to be tried.

4. The witnesses were examined and on the strength of their

testimony as well as documentary evidence including the notices,

the appellant was convicted by the learned Special Judge under

Section 21 of the NDPS Act and sentenced accordingly.

5. Learned counsel for the appellant contends that the appellant

is entitled to acquittal on the short ground that there is non-

compliance of Section 50 of the NDPS Act inasmuch as Section 50

notice served upon the appellant is not in terms of mandatory

provisions of the Act and as per the law laid down by the Supreme

Court. It is contended that in the matter of K. Mohanan Vs. State

of Kerala, 2000 SCC (Cri) 1228, the Supreme Court has 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 communicating to him that he had a right

under law to be searched so. It is contented that neither does the

Section 50 notice nor the testimony of the Investigating Officer

suggest that the appellant was informed of any such right.

6. Learned APP for the State, on the other hand, relying upon the

judgment in the matter of Prabha Shankar Dubey Vs. State of

Madhya Pradesh, 2004 (2) SCC 56 contends that under Section 50

of NDPS Act, no specific manner or mode for serving notice 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.

7. 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."

8. In the present case, on perusal on notice under Section 50,

NDPS Act (Ex.PW3/A), it transpires that the notice, inter alia, states

"you are in possession of smacks and you are to be searched. If you

wish, we can arrange for a Magistrate or a Gazetted Officer for the

purpose of your search in their presence". This offer was declined

by the appellant and she stated that she could be searched by any

female officer. From the notice under Section 50 of NDPS Act and

the testimony of SI Prem Chand (PW3) and Investigating Officer SI

Satbir Singh (PW8), it is evident that the appellant was only

informed and given option to be searched before a Magistrate or a

Gazetted Officer but she was not specifically told that it was her

legal right on insisting for her search in presence of a Magistrate or