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Monday, October 28, 2013

NDPS Act = Search and seizer is a mandatory under sec.42 and sec.50 = Balbir singh principle - Gurjant Singh @ Janta …. Appellant VERSUS State of Punjab …. Respondent = http://judis.nic.in/supremecourt/imgst.aspx?filename=40907

 
NDPS Act = Search and seizer is a mandatory under sec.42 and sec.50 =  but when police officer himself summoned DSP who is an acting DSP with out DSP rank then the Balbir singh principle not apply
Lower court and High court committed grave error - Apex court set aside =
Balbir  Singh  principle 

  If a police officer without any prior information as  contemplated
      under the provisions of the NDPS Act  makes  a  search  or  arrests  a
      person in the normal  course  of  investigation  into  an  offence  or
      suspected offences as provided under the provisions of CrPC  and 

when
      such search is completed at that stage Section  50  of  the  NDPS  Act
      would not  be  attracted  and  the  question  of  complying  with  the
      requirements thereunder would not arise.  

If  during  such  search  or
      arrest there is a chance recovery of any narcotic drug or psychotropic
      substance then the police officer, who is not empowered, should inform
      the empowered officer who should thereafter proceed in accordance with
      the provisions of the NDPS Act. 

If  he  happens  to  be  an  empowered
      officer also, then from that stage onwards, he should  carry  out  the
      investigation in accordance with the  other  provisions  of  the  NDPS
      Act.” =

       when admittedly Section 50 was invoked by  offering
      the presence of a Gazetted officer or a Magistrate  to  the  appellant
      and at the request of P.W.6, P.W.3, who was stated to be the D.S.P. at
      that point of time, was summoned and in whose presence the search  and
      seizure was stated to have  been  made,  the  trial  Court  failed  to
      appreciate whether such  a  search  or  seizure  was  really  held  in
      accordance with Sections 42 and 50 of the NDPS Act.

  25. One of the grounds raised on behalf of the appellant  was  that  P.W.3
      was not holding the post of D.S.P. in a substantive manner in order to
      hold that he was a Gazetted officer on the date of  search.  According
      to the appellant, P.W.3 was not a regularly promoted  D.S.P.  but  was
      only an Inspector functioning as a D.S.P. in a  category  called  ‘Own
      Rank Pay’ D.S.P. According to the appellant, P.W.3 was drawing the pay
      of an Inspector from I.R.D. and was not holding the post of D.S.P.  on
      a regular basis. It was, therefore, contended that such a  person  who
      was not duly promoted as D.S.P., cannot be equated to the status of  a
      Gazetted officer in order to hold  that  a  search  conducted  in  his
      presence was a valid search as contemplated under Section  50  of  the
      NDPS Act. 
As far as the said point raised on behalf of the  appellant,
      we do not find any material or a counter-stand  taken  to  the  effect
      that P.W.3 was a regularly promoted D.S.P. or that as  per  the  rules
      even as an ‘Own Rank Pay’ D.S.P.,he could  be  equated  to  any  other
      D.S.P., holding a substantive post. 
Unfortunately,  as  stated  by  us
      earlier, the trial Court having taken a view that Sections 42  and  50
      were not applicable, completely omitted to examine  the  said  defence
      raised on behalf of the appellant. 
We also  do  not  find  any  contra
      evidence laid on behalf of the prosecution to counter the said  ground
      raised on behalf of the appellant.

  26. In such circumstances it will be highly dangerous to simply affirm the
      ultimate conclusion  of  the  trial  Court  in  having  convicted  the
      appellant and the sentence imposed based on such  conviction,  as  the
      same was without any ratiocination. It was most unfortunate  that  the
      High Court failed to independently  examine  the  correctness  of  the
      findings recorded by the trial Court by simply extracting a portion of
      the judgment of the trial Court, while affirming the conviction.

  27. For all the above stated reasons, the judgment of the trial Court  and
      the confirmation of the same by the High Court  cannot  be  sustained.
      The appeal stands allowed. The conviction and sentence imposed on  the
      appellant is set aside and the  appellant  shall  be  set  at  liberty
      forthwith, if not required in any other case.

                                                        Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1868 OF 2013
                       (@ SLP (CRL.) No.3407 of 2012)


Gurjant Singh @ Janta                        …. Appellant


                                   VERSUS



State of Punjab                                    …. Respondent

                               J U D G M E N T


Fakkir Mohamed Ibrahim Kalifulla, J.

   1. Delay condoned.
   2. Leave granted.

   3. This appeal is directed against the judgment  of  the  High  Court  of
      Punjab and Haryana at Chandigarh dated 12.08.2010 in  Criminal  Appeal
      No.5-SB of 2000.
The appellant was proceeded against  for  an  offence
      under Section 15 of the Narcotic  Drugs  and  Psychotropic  Substances
      Act, 1985 (hereinafter called “the NDPS Act”). 
The trial Court by  its
      judgment dated 30.07.1999, in Sessions Case No.39 of 31.05.1996, found
      the appellant guilty of the offence  alleged  against  him  and  while
      convicting him imposed a sentence of 10  years  rigorous  imprisonment
      apart from a fine of  Rs.1,00,000/-  (Rupees  One  Lac  only)  and  in
      default of payment of fine to undergo rigorous  imprisonment  for  one
      more year.

   4. The case of the prosecution as projected before the  trial  Court  was
      that on 04.04.1996, S.I. Darbara Singh, who was examined as P.W.6, was
      posted as S.H.O, Police Station, Sunam.
According to him he along with
      A.S.I. Balbir Singh, A.S.I. Massa Singh,  H.C.  Bhim  Sain  and  other
      police officers were present at  ‘T’  point  in  an  area  of  village
      Ugrahan in connection with Nakabandi.
At about 00.15 AM,  one  tractor
      trolley was seen coming from the side of  village  Ugrahan.  The  head
      lights of the tractor trolley were on and P.W.6 gave a signal from his
      torch light and  the  tractor  trolley  was  stopped  by  the  driver.
     
According to P.W.6, as soon as the tractor trolley  was  stopped,  the
      driver who tried to slip away  was  overpowered  by  P.W.6  and  other
      police officials. The driver stated  to  have  revealed  his  name  as
      Gurjant Singh @ Janta, the appellant herein.
Thereafter,  when  P.W.6
      checked the trolley of the tractor he found  three  gunny  bags  lying
      inside the trolley. P.W.6 informed the appellant that he  intended  to
      search the gunny bags as he suspected some  incriminating  article  in
      the gunny bags. P.W.6 further informed the appellant that,  if  he  so
      desired, the search could be conducted in the presence of  a  Gazetted
      officer or a Magistrate.
The appellant stated to  have  expressed  his
      consent that the search may be  conducted  in  the  presence  of  some
      Gazetted officer or a Magistrate.

   5. After recording the statement of the appellant and after  getting  his
      signature attested by A.S.I Balbir Singh and A.S.I Massa Singh,  P.W.6
      claimed to have flashed a wireless  message  whereupon  Baldev  Singh,
      DSP, Sunam, who was examined as P.W.3, reached the spot. P.W.6  stated
      to have searched the gunny bags lying in the tractor trolley in  which
      poppy husk was recovered. P.W.6 claimed to have drawn two  samples  of
      250 gms from each of the gunny bag.
The remaining  poppy  husk,  which
      weighed to the extent of 34 kg in each of the gunny bag, was stated to
      have been separately sealed, while the six sample  parcels  were  also
      sealed separately with the impression ‘DS’. P.W.6 also claimed to have
      prepared a sample seal chit separately.
Tractor trolley and  the  case
      properties were taken into possession by P.W.6 through a recovery memo
      attested by P.W.3 as well as by A.S.I Balbir Singh  and  A.S.I.  Massa
      Singh.
The appellant was stated to have been arrested, and the  arrest
      memo along with  Rukka, was sent to  the  police  station  through  C.
      Harjinder Singh, based on which an FIR was recorded by  A.S.I  Sukhdev
      Singh.
After preparing the rough site plan of the  place  of  recovery
      with correct marginal notes and after recording the statement  of  the
      witnesses on the same day, P.W.6 stated to  have  deposited  the  case
      property with the MHC with seals intact along with the sample seal.

   6. The final report was thereafter stated  to  have  been  filed  in  the
      Court. Before the trial Court P.W.1 Kulwant Singh, Registration Clerk,
      P.W.2 A.S.I Balbir Singh, P.W.3 D.S.P.  Baldev  Singh,  P.W.4  Harbans
      Singh C.No.365, P.W.5 Jaswinder Singh and  P.W.6  S.I.  Darbara  Singh
      were examined and the report of the Chemical Examiner Ex.PK  was  also
      filed.
When the incriminating circumstances were put to the  appellant
      under Section 313 Cr.P.C, appellant pleaded false implication alleging
      that he was taken away from his house in the presence of his wife  and
      a false case was planted on him. In defence,  the  appellant  examined
      H.C. Paramjit Singh as D.W.1 Gurmail Kaur, his wife as D.W.2  and  one
      other witness C. Avtar Singh as D.W.3.

   7. Before the trial Court it was contended on  behalf  of  the  appellant
      that there was clear violation of Sections 42 and 50 of the NDPS  Act,
      in as much as, the search was not  conducted  in  the  presence  of  a
      Gazetted officer or a Magistrate.
According to the appellant,  he  was
      forcibly taken away from his house and a false case  was  planted  and
      the claim that search was made in the presence of P.W.3 was not  true.
      It was also contended that P.W.3 was not a regularly  promoted  D.S.P.
      but was only an Inspector in the category of Own Rank  Pay  (ORP).  It
      was contended that since he was only an Inspector and was drawing  the
      pay of an Inspector, while acting as D.S.P, he cannot be held to be  a
      Gazetted Officer.

   8. The trial Court, however, took the view that there was no necessity to
      comply with Section 50 of the NDPS Act and on that basis  did  not  go
      into the question whether P.W.3 was a competent Gazetted  Officer,  in
      order to validate the search stated to have been held in his presence.
      The trial Court in support of its conclusion relied upon the  judgment
      in the case of State of Punjab vs. Balbir Singh reported in  (1994)  3
      SCC 299 and found the appellant guilty of the offence alleged  against
      him and convicted him by imposing a  sentence  of  10  years  rigorous
      imprisonment along with the fine of Rs.1 lac with the  default  clause
      to undergo imprisonment for one more year. In the appeal preferred  by
      the appellant before the High Court, unfortunately, the High Court  by
      simply extracting the concluding part of the  judgment  of  the  trial
      Court chose to confirm the conviction and sentence. The appellant has,
      therefore, come forward with this appeal.

   9. We heard Mr. S.S. Ray, learned counsel for the appellant  as  well  as
      Mr.  Sanchar  Anand,  learned  Additional  Advocate  General  for  the
      respondent. The learned counsel for  the  appellant  mainly  contended
      that there was non-compliance of Section 50 in the  matter  of  search
      alleged to have been made on the appellant and the tractor;  that  the
      contention of the appellant about the status of P.W.3 that he was  not
      a Gazetted  officer  on  the  date  of  the  alleged  search  was  not
      considered by the Courts below and that none of the defence  witnesses
      were properly appreciated by the trial Court as well as  by  the  High
      Court. The learned counsel, therefore, contended that  the  conviction
      and sentence imposed on the appellant cannot be sustained.

  10. Reliance was placed upon the decisions in
State of Punjab  vs.  Baldev Singh reported in (1999) 6 SCC 172, 
State  of  H.P.  vs.  Pawan  Kumar  reported in (2005) 4 SCC 350  in support of his submissions.

  11. Learned Additional Advocate General in his submissions contended  that
      there was no  illegality  in  the  judgment  of  the  trial  Court  in
      convicting  the  appellant  and  the  imposition  of   sentence   and,
      therefore, the High  Court  was  justified  in  confirming  the  same.
      Learned Additional Advocate General contended that the reliance placed
      upon the decision of this Court by the trial Court, namely, the one in
      Balbir Singh  (supra)  was  well  justified.  The  learned  Additional
      Advocate General, therefore, contended that the judgment impugned does
      not call for interference.

  12. Having considered the respective submissions and also having  bestowed
      our serious consideration to the judgment of the trial Court, as  well
      as that of the High Court, at the very outset we wish  to  state  that
      the reliance placed upon by the trial Court in  Balbir  Singh  (supra)
      was totally inappropriate to the facts of this case  and  consequently
      the ratiocination of the trial Court in having held that  Sections  42
      and 50 were not attracted to the case on hand was not correct.

  13. When we refer to the decision of this Court in Balbir  Singh  (supra),
      what has been held therein as a broad principle in paragraph 25(1), is
       as under:
      “25. The questions considered above arise frequently before the  trial
      courts. 
Therefore we find it necessary  to  set  out  our  conclusions
      which are as follows:
     
(1) If a police officer without any prior information as  contemplated
      under the provisions of the NDPS Act  makes  a  search  or  arrests  a
      person in the normal  course  of  investigation  into  an  offence  or
      suspected offences as provided under the provisions of CrPC  and 

when
      such search is completed at that stage Section  50  of  the  NDPS  Act
      would not  be  attracted  and  the  question  of  complying  with  the
      requirements thereunder would not arise.  

If  during  such  search  or
      arrest there is a chance recovery of any narcotic drug or psychotropic
      substance then the police officer, who is not empowered, should inform
      the empowered officer who should thereafter proceed in accordance with
      the provisions of the NDPS Act. 

If  he  happens  to  be  an  empowered
      officer also, then from that stage onwards, he should  carry  out  the
      investigation in accordance with the  other  provisions  of  the  NDPS
      Act.”

  14. The said principle clearly  postulates  a  situation  where  a  police
      officer in the  normal  course  of  investigation  of  an  offence  or
      suspected offences as provided under the provisions of Cr.P.C. and  in
      the course of such investigation when a search  is  completed  and  in
      that process happens to stumble upon possession of a narcotic drug  or
      psychotropic substance, the question of invoking Section 50 would  not
      arise. 
When that  principle  is  examined  carefully  one  can  easily
      understand that without any prior information as to possession of  any
      narcotic drug and psychotropic substance, a police officer might  have
      held a search in the course of discharge of his duties as contemplated
      under the provisions of Cr.P.C and, therefore,  it  would  well  neigh
      impossible to state that even under such a situation, the  application
      of Section 50 would get attracted.
In fact, if we  examine  the  facts
      involved in Balbir Singh (supra),
as per  the  contention  of  learned
      counsel for the State,
 in that decision the  police  officer  effected
      the  arrest,  search  and  seizure  on  reasonable  suspicion  that  a
      cognizable  offence  was  committed  and  not  based  on   any   prior
      information that any offence punishable under NDPS Act  was  committed
      and, therefore, it was argued that complying with  the  provisions  of
      the NDPS Act at the time of the said arrest, search  and  seizure  did
      not  arise  in  as  much  as  such  arrest,  search  and  seizure  was
      substantially in accordance with the provisions of the Cr.P.C.
 It was,
      therefore, contended that such arrest, search and  seizure  cannot  be
      declared as illegal.  While  examining  the  contention  in  the  said
      background, principle no.1 in paragraph 25 came to be rendered.

  15. However, while analyzing the importance of Section 50 of the NDPS  Act
      in that very decision, 
this Court has held as under in paragraph 20:

      “20. In Miranda v. Arizona 
the Court, considering the question
whether
      the accused be apprised of his right not to  answer  and  keep  silent
      while being interrogated by the police, 
observed thus:
           “At the outset, if a person in custody is  to  be  subjected  to
           interrogation,  he  must  first  be  informed   in   clear   and
           unequivocal terms that he has the right to  remain  silent.  For
           those unaware of the privilege, the warning is needed simply  to
           make them aware  of  it  —  the  threshold  requirement  for  an
           intelligent decision as to its exercise. More important, such  a
           warning is an absolute prerequisite in overcoming  the  inherent
           pressures of the interrogation atmosphere.”
      It was further observed thus:
           “The warning of the right to remain silent must  be  accompanied
           by the explanation that anything  said  can  and  will  be  used
           against the individual in court. 
This warning is needed in order
           to make him aware not only of the privilege,  but  also  of  the
           consequences of foregoing it. It is only through an awareness of
           these consequences that there  can  be  any  assurance  of  real
           understanding  and  intelligent  exercise  of   the   privilege.
           
Moreover, this warning may serve to  make  the  individual  more
           acutely aware that he is faced with a  phase  of  the  adversary
           system — that he is not in the presence of persons acting solely
           in his interest.”
      When such is the importance of a right given to an accused  person  in
      custody in general, the right by  way  of  safeguard  conferred  under
      Section 50 in the context is all  the  more  important  and  valuable.
     
Therefore it is to be taken as an imperative requirement on  the  part
      of the officer intending to search to inform the person to be searched
      of his right that if he  so  chooses,  he  will  be  searched  in  the
      presence of a Gazetted Officer or a Magistrate. Thus the provisions of
      Section 50 are mandatory.”

  16. If the ratio of the said decision had been  properly  understood,  the
      flaw committed by the trial Court and as confirmed by the  High  Court
      in our considered opinion would not have arisen. 
The distinct  feature
      in the case on hand was  that  on  the  date  of  occurrence  i.e.  on
      04.04.1996 at 00.15 AM, the police party headed by P.W.6,  accosted  a
      tractor trolley coming from the side of  village  Ugrahan,  which  was
      stopped by him and that when the driver  after  stopping  the  tractor
      tried to escape was apprehended by the police team. 
The  most  crucial
      aspect of the case was that P.W.6 noticed three gunny  bags  lying  in
      the  tractor  of  the  appellant  and  felt  that  some  incriminating
      substance was kept in those gunny bags. 
 P.W.6,  therefore,  took  the
      view that before effecting search of the gunny bags, the necessity  of
      affording an opportunity to the appellant to conduct the search in the
      presence of a Gazetted officer or  a  Magistrate  was  imperative. 
 In
      other  words,  after  noticing  three  gunny  bags,   P.W.6,   as   an
      investigating officer, felt the  need  to  invoke  the  provisions  of
      Section 50 and thereby provide an opportunity  to  the  appellant  for
      holding any search  in  the  presence  of  a  Gazetted  officer  or  a
      Magistrate.  
When  once  P.W.6  could  assimilate   the   said   legal
      requirement as stipulated under Section 50 of the NDPS Act, we fail to
      understand as to how principle No.1 in paragraph 25  of  the  decision
      reported in Balbir Singh (supra) could be applied. 
Unfortunately,  the
      trial Court failed to understand the said principle set out in  Balbir
      Singh (supra) in the proper perspective  while  holding  that  neither
      Section 42 nor Section 50 was attracted to the facts of this case.

  17. On the other hand even  according  to  the  prosecution,  namely,
the
      investigating officer himself, i.e. P.W.6, a search was required after
      apprehending the appellant along with the tractor and the  gunny  bags
      and such search had to be necessarily  conducted  in  accordance  with
      Section 50 of the NDPS Act. 
It was further the case of the prosecution
      that such a step was pursued by calling upon the appellant to exercise
      his opinion and after affirmatively ascertaining 
whether he wanted any
      search to be conducted in the presence of the Gazetted  officer,  only
      then P.W.3 was summoned, in whose presence the  search  operation  was
      held. 
Therefore, the conclusion of the trial Court in having held that
      Sections 42 and 50 were not applicable to the case on hand was a total
      misunderstanding of the legal provisions in the  light  of  the  facts
      placed before it  and  consequently  the  conclusion  arrived  at  for
      convicting the appellant was wholly unjustified.

  18. In fact, after reaching the said conclusion, all that the trial  Court
      did was to hold that the version of the prosecution  witnesses  cannot
      be discarded merely because they were police  officers  and  that  the
      evidence of P.W.3 was sufficient to support the search and recovery of
      the narcotic substance from the appellant.
The trial Court  also  held
      that the version of the defence witnesses was not worth mentioning.

  19. Unfortunately, the High Court has committed  the  same  errors  whilst
      considering the correctness of the judgment of the  trial  Court.
The
      High  Court  being  the  first  appellate  Court   was   required   to
      independently reappraise the entire material, record  the  conclusions
      supported by cogent reasons.
In our opinion, the High Court failed  to
      exercise its jurisdiction in dismissing the appeal.

  20. Before concluding, 
we wish to refer to the decisions placed before  us
      to state the importance of  applying  the  stipulations  contained  in
      Section 50, before  holding  the  search,  in  order  to  ensure  fair
      consideration of the offence alleged against an accused under the NDPS
      Act, before reaching  any  conclusion  about  the  commission  of  the
      alleged offence.

  21. In the Constitution Bench decision  of  this  Court  in  Baldev  Singh
      (supra), the importance of due  compliance  of  Section  50  has  been
      mainly set out in paragraphs 28, 32 and 33 which are as under:
      “28……The argument that keeping in view the  growing  drug  menace,  an
      insistence on compliance with all the safeguards contained in  Section
      50 may result in more  acquittals  does  not  appeal  to  us. 
 If  the
      empowered officer fails to comply with the requirements of Section  50
      and an order or acquittal is recorded on that ground, the  prosecution
      must thank itself for its lapses. 
Indeed in every case the end  result
      is important but the means to achieve it must remain above board.  The remedy cannot be worse than the disease itself. 
The legitimacy of  the
      judicial process may come under a  cloud  if  the  court  is  seen  to
      condone acts of lawlessness  conducted  by  the  investigating  agency
      during search operations and may also undermine respect  for  the  law
      and  may  have  the  effect   of   unconscionably   compromising   the
      administration of justice. That cannot be permitted.”

      32. However, the question
whether the provisions  of  Section  50  are
      mandatory or directory and, if  mandatory,  to  what  extent  and  the
      consequences of non-compliance with  it  does  not  strictly  speaking
      arise in the context in which the protection has been incorporated  in
      Section 50 for the benefit of the  person  intended  to  be  searched.
     
Therefore, without expressing any opinion as to whether the provisions
      of Section 50 are mandatory or not, but bearing in  mind  the  purpose
      for which the safeguard has been made, we hold that the provisions  of
      Section 50 of the Act implicitly make it imperative and obligatory and
      cast a duty of the investigating officer (empowered officer) to ensure
      that search of the person (suspect)  concerned  is  conducted  in  the
      manner prescribed by Section 50, by intimating to the person concerned
      about the existence of his right, that if he so requires, he shall  be
      searched before a gazetted officer or a Magistrate and in case  he  so
      opts, failure to conduct his search before a  gazetted  officer  or  a
      Magistrate would  cause  prejudice  to  the  accused  and  render  the
      recovery of the illicit article suspect and vitiate the conviction and
      sentence of the accused, where the conviction has been  recorded  only
      on the basis of the  possession  of  the  illicit  article,  recovered
      during a search conducted in violation of the provisions of Section 50
      of the Act.
The omission may  not  vitiate  the  trial  as  such,  but
      because of the inherent prejudice which would be caused to an  accused
      by the omission to be informed of the existence of his right, it would
      render his  conviction  and  sentence  unsustainable.
The  protection
      provided in the section to an accused to be intimated that he has  the
      right to have his personal search conducted before a gazetted  officer
      or a Magistrate, if he so requires, is sacrosanct and  indefeasible  —
      it cannot be disregarded by the prosecution except at its own peril.


      33. The question
whether or not the safeguards provided in Section  50
      were observed would have, however, to be determined by  the  court  on
      the basis of the evidence led at the trial and  the  finding  on  that
      issue, one way or the other, would be relevant for recording an  order
      of conviction or acquittal.
Without  giving  an  opportunity  to  the
      prosecution to establish at the trial that the provisions  of  Section
      50 and, particularly, the safeguards provided  in  that  section  were
      complied with, it would not be  advisable  to  cut  short  a  criminal
      trial.”


  22. In Pawan Kumar (supra) wherein the  Constitution  Bench  decision  was
      referred to and was reiterated as under in paragraph 26:
      “26.……..Otherwise, there would be no distinction between  recovery  of
      illicit drugs, etc. seized during a search conducted  after  following
      the provisions of Section 50 of the Act and a seizure  made  during  a
      search conducted in breach of the provisions  of  Section  50.  Having
      regard to the scheme and the language  used  a  very  strict  view  of
      Section 50 of the Act was taken and it was held that failure to inform
      the person concerned of his right as emanating from sub-section (1) of
      Section 50 may render the  recovery  of  the  contraband  suspect  and
      sentence of an accused bad and unsustainable in law. As  a  corollary,
      there is no warrant or justification for giving an extended meaning to
      the word “person” occurring in the same provision  so  as  to  include
      even some bag, article  or  container  or  some  other  baggage  being
      carried by him.”

  23. The aforesaid observations of the above Constitution Bench decision in
      Baldev Singh (supra) and the three Judge Bench decision in Pawan Kumar
      (supra),
clearly highlight the  legal  requirement  of  compliance  of
      Section 50 in its true spirit.
It will have to  be  stated  that  such
      compliance of the requirement under Section 50 of holding of a  search
      and seizure in the presence  of  Gazetted  officer  or  a  Magistrate,
      cannot be an empty formality.
In other words, the offer to the  person
      to be searched in the presence of a Gazetted officer or a  Magistrate,
      should really serve the purpose of ensuring that there was every  bona
      fide effort taken by the prosecution to bring forth the grave  offence
      of possession of narcotic substance and proceed against the person  by
      way  of  prosecution  and  thereby  establish  the  truth  before  the
      appropriate judicial forum. In  the  same  breath  such  a  course  of
      compliance of Section 50 would also enable the person accused of  such
      a grave  offence  to  be  convinced  that  the  presence  of  such  an
      independent Gazetted officer or a Magistrate  would  also  enable  the
      person proceeded against to demonstrate that there  was  no  necessity
      for holding any search on  him  and  thereby  persuade  the  concerned
      Gazetted officer or Magistrate to protect  his  fundamental  right  of
      freedom, from being unlawfully proceeded against. In other words,  the
      purpose of Section 50 was to ensure that on the one hand, the  holding
      of a search and seizure was not a farce of an  exercise  in  order  to
      falsely implicate a person by unscrupulous police  authorities,  while
      on the other hand to prevent an accused from committing an offence  of
      a serious nature against the society, warranting appropriate  criminal
      proceedings to be launched and  in  the  event  of  establishing  such
      offence, conviction and sentence to be imposed in accordance with law.
      Therefore, such a dual requirement of law prescribed under Section  50
      cannot be dealt with lightly by the Courts dealing with the  trial  of
      such offences brought before it.

  24. Keeping the above principles in mind, when we examine  the  manner  in
      which the trial Court dealt with the case of the prosecution  as  well
      as the defence pleaded, we find  that  the  trial  Court  committed  a
      serious flaw in holding that Sections 42 and 50 were not attracted  to
      the case on hand, which we have found in the earlier paragraph  was  a
      total misreading of the provision as well as the decision relied  upon
      by it. 
That apart, when admittedly Section 50 was invoked by  offering
      the presence of a Gazetted officer or a Magistrate  to  the  appellant
      and at the request of P.W.6, P.W.3, who was stated to be the D.S.P. at
      that point of time, was summoned and in whose presence the search  and
      seizure was stated to have  been  made,  the  trial  Court  failed  to
      appreciate whether such  a  search  or  seizure  was  really  held  in
      accordance with Sections 42 and 50 of the NDPS Act.

  25. One of the grounds raised on behalf of the appellant  was  that  P.W.3
      was not holding the post of D.S.P. in a substantive manner in order to
      hold that he was a Gazetted officer on the date of  search.  According
      to the appellant, P.W.3 was not a regularly promoted  D.S.P.  but  was
      only an Inspector functioning as a D.S.P. in a  category  called  ‘Own
      Rank Pay’ D.S.P. According to the appellant, P.W.3 was drawing the pay
      of an Inspector from I.R.D. and was not holding the post of D.S.P.  on
      a regular basis. It was, therefore, contended that such a  person  who
      was not duly promoted as D.S.P., cannot be equated to the status of  a
      Gazetted officer in order to hold  that  a  search  conducted  in  his
      presence was a valid search as contemplated under Section  50  of  the
      NDPS Act.
As far as the said point raised on behalf of the  appellant,
      we do not find any material or a counter-stand  taken  to  the  effect
      that P.W.3 was a regularly promoted D.S.P. or that as  per  the  rules
      even as an ‘Own Rank Pay’ D.S.P.,he could  be  equated  to  any  other
      D.S.P., holding a substantive post. 
Unfortunately,  as  stated  by  us
      earlier, the trial Court having taken a view that Sections 42  and  50
      were not applicable, completely omitted to examine  the  said  defence
      raised on behalf of the appellant. 
We also  do  not  find  any  contra
      evidence laid on behalf of the prosecution to counter the said  ground
      raised on behalf of the appellant.

  26. In such circumstances it will be highly dangerous to simply affirm the
      ultimate conclusion  of  the  trial  Court  in  having  convicted  the
      appellant and the sentence imposed based on such  conviction,  as  the
      same was without any ratiocination. It was most unfortunate  that  the
      High Court failed to independently  examine  the  correctness  of  the
      findings recorded by the trial Court by simply extracting a portion of
      the judgment of the trial Court, while affirming the conviction.

  27. For all the above stated reasons, the judgment of the trial Court  and
      the confirmation of the same by the High Court  cannot  be  sustained.
      The appeal stands allowed. The conviction and sentence imposed on  the
      appellant is set aside and the  appellant  shall  be  set  at  liberty
      forthwith, if not required in any other case.
                                                     ………….……….…………………………..J.
                                    [Surinder Singh Nijjar]


                                                    ...……….…….………………………………J.
                                  [Fakkir Mohamed Ibrahim Kalifulla]
 New Delhi;
 October 28, 2013.

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