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Friday, January 11, 2013

Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) = whether the empowered officer, acting under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) is legally obliged to apprise the accused of his right to be searched before a Gazetted Officer or a Magistrate and whether such a procedure is mandatory under the provisions of the NDPS Act.= whether PW1, the officer who had conducted the search on the person of the appellant had followed the procedure laid down under Section 50 of the NDPS Act. On this question, there were conflicts of views by different Benches of this Court and the matter was referred to a five Judge Bench. This Court in Vijaysingh Chandubha Jadeja (supra) answered the question, stating that it is imperative on the part of the officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act, to be searched before a Gazetted Officer or a Magistrate. This Court also held that it is mandatory on the part of the authorized officer to make the accused aware of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. The suspect may or may not choose to exercise the right provided to him under the said provision, but so far as the officer concerned, an obligation is cast on him under Section 50 of the NDPS Act to apprise the person of his right to be searched before a Gazetted Officer or a Magistrate. The question, as to whether this procedure has been complied with or not, in this case the deposition of PW1 assumes importance, which reads as follows: “He was apprised while telling the reason of being searched that he could be searched before any Magistrate or any Gazetted Officer if he wished. He gave his consent in written and said that I have faith on you, you can search me. Fard regarding apprising and consent is Ex.P- 3 on which I put my signature from A to B and the accused put his signature from C to D. E to F is the endorsement of the consent of the accused and G to H is signature, which has been written by the accused.” 8. The above statement of PW1 would clearly indicate that he had only informed the accused that he could be searched before any Magistrate or a Gazetted Officer if he so wished. The fact that the accused person has a right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or a Magistrate was not made known to him. We are of the view that there is an obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a Gazetted Officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person. 9. We may, in this connection, also examine the general maxim “ignorantia juris non excusat” and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Indisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations,for example, we cannot expect a rustic villager, totally illiterate, a poorman on the street, to be aware of the various law laid down in this countryi.e. leave aside the NDPS Act. We notice this fact is also within the knowledge of the legislature, possibly for that reason the legislature in its wisdom imposed an obligation on the authorized officer acting under Section 50 of the NDPS Act to inform the suspect of his right under Section 50 to be searched in the presence of a Gazetted Officer or a Magistrate warranting strict compliance of that procedure. 10. We are of the view that non-compliance of this mandatory procedure has vitiated the entire proceedings initiated against the accused- appellant. We are of the view that the Special Court as well as the High Court has committed an error in not properly appreciating the scope of Section 50 of the NDPS Act. The appeal is, therefore, allowed. Consequently the conviction and sentence imposed by the Sessions Court and affirmed by the High Court are set aside. The accused-appellant, who is in jail, to be released forthwith, if not required in connection with any other case.


                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.817 OF 2008





Ashok Kumar Sharma                           …. Appellant

                                   Versus

State of Rajasthan                                …. Respondent



                               J U D G M E N T



K.S. Radhakrishnan, J.



1.    The short question that has come up for consideration in  this  appeal
is whether the empowered officer, acting under Section 50  of  the  Narcotic
Drugs and Psychotropic Substances Act, 1985 (for short ‘the  NDPS  Act’)  is
legally obliged to apprise the accused of his right to be searched before  a
Gazetted Officer or a Magistrate and whether such a procedure  is  mandatory
under the provisions of the NDPS Act.



2.    PW1,  Additional  Superintendent  of  Police  (Crimes),  Jaipur  City,
Jaipur got secret  information  that  on 25.2.2001  one  Ashok  Kumar,   the
appellant herein would be selling smack to  a  person  near  Nandipur  under
Bridge.  After completing the formalities PW1  along  with  two  independent
witnesses reached near Nandpuri under Bridge.  At about 4.55 P.M.  a  person
came on a scooter, who was stopped by the police force and  was  questioned.
Exhibit P-3, notice was given by PW1 under Section 50 of  the  NDPS  Act  to
the appellant to get himself  searched  either  before  a  Magistrate  or  a
Gazetted officer.   The appellant gave his  consent  in  writing  on  Ex.P-3
itself stating that he has full confidence in him  and  agreed  for  search.
Upon search two packets had been recovered from the right and  left  pockets
of the pant of the appellant.   The  contra-banned    was  weighed  by  PW7,
goldsmith and the total weight of the  packets  was  344  gms.    From  each
packet two samples of 10 gms. were taken and sealed  and  remaining  packets
were sealed separately.  The appellant was then  arrested  and  the  scooter
was seized.



3.    PW1 gave a written report to the Station House Officer, Malviya  Nagar
Police Station, Jaipur to register FIR No.112/2001 under Section  8  and  21
of the NDPS Act.  Ex-P-19, report of the Public  Analyst  of  the  Rajasthan
State Forensic Laboratory, Jaipur showed  that  the  samples  contained  the
presence of diacetylmorphine (Heroin).  On completion of the  investigation,
challan was filed against the accused.  Learned Special Judge,  NDPS  framed
the charge under Sections 8 and 21 of the  NDPS  Act.   Before  the  Special
Judge, prosecution examined 14 witnesses and produced Ex. P1  to  P19.   The
accused-appellant in  his  statement  under  Section  313  of  the  Code  of
Criminal Procedure stated that false case had been foisted against him.

4.    The Sessions Court after having found guilty, convicted the  appellant
and sentenced him to undergo rigorous imprisonment for ten years and to  pay
a  fine  of  Rs.1  lakh  and,  in  default,  to  further  under  go   simple
imprisonment for one year.  The appellant preferred Criminal Appeal  No.1157
of 2003 before the High Court under Section 374  of  the  Code  of  Criminal
Procedure.  The appeal was, however, rejected by the High Court on  9.2.2007
against which this appeal has been preferred by way of special leave.

5.    Ms. C.K. Sucharita, learned amicus curiae appearing for the appellant-
accused submitted that the High Court has committed a  grave  error  in  not
appreciating  the  fact  that  the  conviction  was  vitiated  by  the  non-
compliance of the procedure laid  down  in  Section  50  of  the  NDPS  Act.
Learned counsel took us to the evidence of PW1 and submitted  that  PW1  had
not disclosed the fact that the accused had a right to be searched before  a
Gazetted Officer or a Magistrate, if so required by him.  According  to  the
learned  counsel  non-compliance  of  that  procedure  vitiated  the  entire
proceedings initiated against the appellant.  In support of  her  contention
reliance was placed on a Judgment of  this  court  in  Vijaysingh  Chandubha
Jadeja v. State of Gujart (2011) 1 SCC 609.

6.     Mr.  Amit  Lubhaya,  learned  counsel  appearing  for  the  State  of
Rajasthan, on the other hand, contended that the Sessions Court has  rightly
convicted the appellant and there has been a substantial compliance  of  the
procedure laid down under Section 50 of the -

NDPS Act.  Learned counsel further submitted that the High Court in  a  well
considered order has  affirmed  the  conviction  as  well  as  the  sentence
imposed by the Special Judge.

7.    We are in this case concerned only with the question whether PW1,  the
officer who had conducted the search on the  person  of  the  appellant  had
followed the procedure laid down under Section 50  of  the  NDPS  Act.    On
this question, there were conflicts of views by different  Benches  of  this
Court and the matter was referred to a five  Judge  Bench.   This  Court  in
Vijaysingh Chandubha Jadeja (supra) answered the question, stating  that  it
is imperative on the part of the officer to apprise the person  intended  to
be searched of his right under Section 50 of the NDPS Act,  to  be  searched
before a Gazetted Officer or a Magistrate.  This Court also held that it  is
mandatory on the part of the authorized officer to make  the  accused  aware
of the existence of his right to be searched before a Gazetted Officer or  a
Magistrate, if so required by him  and  this  mandatory  provision  requires
strict compliance.  The suspect may or may not choose to exercise the  right
provided to him under  the  said  provision,  but  so  far  as  the  officer
concerned, an obligation is cast on him under Section 50 of the NDPS Act  to
apprise the person of his right to be searched before a Gazetted Officer  or
a Magistrate.  The question, as to whether this procedure has been  complied
with or not, in this case the deposition of PW1  assumes  importance,  which
reads as follows:

      “He was apprised while telling the reason of being  searched  that  he
      could be searched before any Magistrate or any Gazetted Officer if  he
      wished.  He gave his consent in written and said that I have faith  on
      you, you can search me.  Fard regarding apprising and consent is Ex.P-
      3 on which I put my signature from A to B  and  the  accused  put  his
      signature from C to D. E to F is the endorsement of the consent of the
      accused and G to H  is  signature,  which  has  been  written  by  the
      accused.”




8.    The above statement of PW1 would clearly indicate  that  he  had  only
informed the accused that he could be searched before any  Magistrate  or  a
Gazetted Officer if he so wished.  The fact that the accused  person  has  a
right under Section 50 of the NDPS Act to  be  searched  before  a  Gazetted
Officer or a Magistrate was not made known to him.  We are of the view  that
there is an obligation on the part of the empowered officer  to  inform  the
accused or the suspect of the existence of  such  a  right  to  be  searched
before a Gazetted Officer or a Magistrate, if so required by him.   Only  if
the suspect does not choose to exercise the right in spite of apprising  him
of his right, the empowered officer could conduct the search on the body  of
the person.

9.     We  may,  in  this  connection,  also  examine  the   general   maxim
“ignorantia juris non excusat” and whether in such a situation  the  accused
could take a defence that he was unaware  of  the  procedure  laid  down  in
Section 50 of the NDPS Act.  Ignorance does not normally afford any  defence
under the criminal law,  since  a  person  is  presumed  to  know  the  law.
Indisputedly ignorance of law often in reality exists, though as  a  general
proposition, it is true, that knowledge of law  must  be  imputed  to  every
person.  But it must be too much to impute knowledge in certain  situations,
for example, we cannot expect a rustic villager, totally illiterate, a  poor
man on the street, to be aware of the various law laid down in this  country
i.e. leave aside the NDPS Act.  We notice  this  fact  is  also  within  the
knowledge of the legislature, possibly for that reason  the  legislature  in
its wisdom imposed an obligation on  the  authorized  officer  acting  under
Section 50 of the NDPS Act to inform the suspect of his right under  Section
50 to be searched in the presence of a  Gazetted  Officer  or  a  Magistrate
warranting strict compliance of that procedure.

10.   We are of the view that non-compliance  of  this  mandatory  procedure
has  vitiated  the  entire  proceedings  initiated  against   the   accused-
appellant.  We are of the view that the Special Court as well  as  the  High
Court has committed an error in  not  properly  appreciating  the  scope  of
Section  50  of  the  NDPS  Act.   The  appeal   is,   therefore,   allowed.
Consequently the conviction and sentence imposed by the Sessions  Court  and
affirmed by the High Court are set aside.  The accused-appellant, who is  in
jail, to be released forthwith,  if not  required  in  connection  with  any
other case.



                                                              …………………………..J.
                                                      (K.S. Radhakrishnan)


                                                 ….....……………………J.
                                                 (Dipak Misra)
New Delhi,
January 9, 2013


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