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Saturday, March 1, 2014

Section 8 read with Section 18 and under Section 8 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (the NDPS Act) and sec. 50 of NDPS Act - Search before Police Superintendent part of raiding party - is invalid - Suggesting the superintendent as one of the Gazetted Officer mentioned in sec. 50 of NDPS Act is itself a wrong one and as such the search is invalid and as such the High court rightly acquitted the accused and Apex court dismissed the appeal = State of Rajasthan … Appellant Vs. Parmanand & Anr. … Respondents = 2014(Feb.Part) judis.nic.in/supremecourt/filename=41273

Section 8 read  with  Section  18 and under Section  8  read  with  Section  29  of  the  Narcotic  Drugs  and Psychotropic Substances Act, 1985 (the NDPS Act) and  sec. 50 of NDPS Act -   Search before Police Superintendent part of raiding party - is invalid - Suggesting the superintendent as one of the Gazetted Officer mentioned in sec. 50 of NDPS Act is itself a wrong one and as such the search is invalid and as such the High court rightly acquitted the accused and Apex court dismissed the appeal =

 We also notice that PW-10 SI Qureshi  informed  the  respondents  that
they could be searched before the nearest Magistrate  or  before  a  nearest
gazetted officer or before PW-5 J.S. Negi, the  Superintendent,  who  was  a
part of the raiding party.  
It is the prosecution case that the  respondents
informed the officers that they would like to be searched before  PW-5  J.S.
Negi by PW-10 SI Qureshi. 
This,  in  our  opinion,  is  again  a  breach  of
Section 50(1) of the NDPS Act.  The idea behind taking  an   accused   to  a
nearest Magistrate or a nearest gazetted officer, if he so requires,  is  to
give him a chance of being  searched  in  the  presence  of  an  independent
officer.  
Therefore, it was improper  for  PW-10  SI  Qureshi  to  tell  the
respondents that a third alternative was available and that  they  could  be
searched before PW-5 J.S. Negi, the Superintendent,  who  was  part  of  the
raiding party.  
PW-5 J.S. Negi cannot be called an independent  officer.  We
are not expressing any opinion on the question whether  if  the  respondents
had voluntarily expressed that they wanted to be searched before  PW-5  J.S.
Negi, the search would have been vitiated or  not.   
But  PW-10  SI  Qureshi
could not have given a third option to the respondents  when  Section  50(1)
of the NDPS Act  does  not  provide  for  it  and  when  such  option  would
frustrate the provisions of Section 50(1) of the NDPS Act.  
On  this  ground
also, in our opinion, the search conducted by PW-10 SI Qureshi is  vitiated.
 We have, therefore, no hesitation in  concluding  that  breach  of  Section
50(1) of the NDPS Act has  vitiated  the  search.   The  conviction  of  the
respondents was, therefore, illegal.   The  respondents  have  rightly  been
acquitted by the High Court.  It is not  possible  to  hold  that  the  High
Court’s view is perverse.  The appeal is, therefore, dismissed.   

2014(Feb.Part) judis.nic.in/supremecourt/filename=41273  
RANJANA PRAKASH DESAI, MADAN B. LOKUR
                                                          REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPEAL NO.78 OF 2005


State of Rajasthan                      …          Appellant


           Vs.


Parmanand & Anr.                  …          Respondents

                                  JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.


1.     The respondents  were  tried  by  the  Special  Judge  (NDPS  Cases),
Chhabra, District Baran for offences under Section 8 read  with  Section  18
and under Section  8  read  with  Section  29  of  the  Narcotic  Drugs  and
Psychotropic Substances Act, 1985 (the NDPS Act).

2.     The case of the prosecution was that on 13/10/1997 during  Kota  Camp
at Iklera, P.N. Meena, Sub-Inspector, Office of the Narcotics  Commissioner,
Kota received information at 1900 hours in the evening that the  respondents
were to handover about 10 Kg opium on  14/10/1997  in  the  morning  between
4.00 a.m. to 6.00 a.m. at Nangdi-Tiraha,  Iklera,  Chhipabaraud  Road  to  a
smuggler.  This information was entered by SI Meena  in  the  diary  and  he
forwarded it to the Investigating Officer J.S. Negi,  Superintendent.   J.S.
Negi sent  this  information  through  Constable  B.L.  Meena  to  Assistant
Narcotic Commissioner, Kota. Thereafter,  raiding  party  was  formed.   The
raiding  party was headed by Superintendent J.S. Negi.   The  raiding  party
reached  Nangdi-Tiraha  by  a  Government  vehicle.   Independent  witnesses
Ramgopal and Gopal Singh were called  by  SI  Qureshi.   Their  consent  was
obtained.  At about  4.25  a.m.,  the  respondents  came  from  the  village
Rajpura.  On seeing the raiding party, they tried to run away but they  were
stopped.  Enquiry was made with both the respondents in the presence of  the
independent witnesses by SI Qureshi.   The  respondents  gave  their  names.
Respondent No. 1 Parmanand had one white colour gunny bag of manure  in  his
left hand.  SI Qureshi told the  respondents  that  he  had  to  take  their
search.  They were told about the provisions of Section 50 of the NDPS  Act.
 They were told that under Section 50(1) of the NDPS Act, they had  a  right
to get themselves searched in the presence of any nearest Magistrate or  any
gazetted officer or in the presence  of  Superintendent  J.S.  Negi  of  the
raiding party.  One written notice to that effect was  given  to  them.   On
this notice, appellant  Surajmal  gave  consent  in  writing  in  Hindi  for
himself and for appellant Parmanand and stated that they are  ready  to  get
themselves searched by SI Qureshi in the  presence  of  Superintendent  J.S.
Negi.  He also put his thumb impression.  Thereafter, bag of respondent  No.
1 Parmanand was searched by SI Qureshi.  Inside the bag in a  polythene  bag
some black material was found.  The respondents told him that it  was  opium
and they had brought it from the village. The weight of the opium was 9  Kg.
600 gms.  Necessary procedure of drawing samples and sealing  was  followed.
The respondents were  arrested.   After  completion  of  the  investigation,
respondent no. 1 Parmanand was charged for  offence  under  Section  8  read
with Section 18 of the NDPS Act and respondent  No.2  Surajmal  was  charged
for offence under Section 8 read with  Section  18  and  for  offence  under
Section 8 read with Section 29 of the NDPS Act.   The  prosecution  examined
11  witnesses.   The  important  witnesses   are   PW-5   J.S.   Negi,   the
Superintendent, PW-9 SI Meena and PW-10 SI Qureshi. The respondents  pleaded
not guilty to the charge.  They contended  that  the  police  witnesses  had
conspired and framed them.  The case is false.

3.    Learned  Special  Judge  convicted  respondent  No.1  Parmanand  under
Section 8 read with Section 18 of the NDPS Act and respondent No.2  Surajmal
under Section 8 read with Section 28 of the NDPS Act.  They  were  sentenced
for 10 years rigorous imprisonment each and a fine of Rs.10 lakhs each.   In
default of  payment  of  fine,  they  were  sentenced  to  undergo  rigorous
imprisonment for two years.

4.    Aggrieved by the said judgment and order,  the  respondents  preferred
an appeal  to  the  Rajasthan  High  Court.   By  the  impugned  order,  the
Rajasthan High Court acquitted the respondents. Hence, this  appeal  by  the
State.

5.     Mr.  Imtiaz  Ahmed,  learned  counsel  for  the  State  of  Rajasthan
submitted that the High Court was wrong in coming  to  the  conclusion  that
there was no compliance with Section 50 of the NDPS Act.  Counsel  submitted
that  PW-10  SI  Qureshi  has  clearly  stated  that  the  respondents  were
communicated their right under Section 50(1) of the  NDPS  Act.   A  written
notice was also given to them and only after they consented to  be  searched
by PW-10 SI Qureshi in the presence of PW-5 J.S. Negi,  the  Superintendent,
that the search of their  person  and  search  of  bag  of  respondent  No.1
Parmanand was conducted.  Counsel submitted that the  High  Court  was  also
wrong in disbelieving independent pancha witnesses.  Counsel urged that  the
impugned order is perverse and deserves to be set aside.

6.    Ms. Nidhi, learned counsel for the respondents,  on  the  other  hand,
submitted that admittedly notice under Section 50 of  the  NDPS  Act  was  a
joint notice.  The respondents were  entitled  to  individual  notice.   The
search is, therefore, vitiated.   In  this  connection,  counsel  relied  on
judgment of the Punjab and Haryana High Court in  Paramjit  Singh  and  Anr.
v.   State of Punjab[1] and judgment of the Bombay High Court in  Dharamveer
Lekhram Sharma and Another   v.   The  State  of  Maharashtra  and  Ors.[2].
Counsel submitted that search was a farce.  The High Court  has,  therefore,
rightly acquitted the respondents.

7.    The question is whether Section 50 of the NDPS Act was  complied  with
or not.  Before we go to  the  legalities,  it  is  necessary  to  see  what
exactly the important police  witnesses  have  stated  about  compliance  of
Section 50 of the NDPS  Act.   The  gist  of  the  evidence  of  the  police
witnesses PW-5 J.S. Negi, the Superintendent, PW-9 SI  Meena  and  PW-10  SI
Qureshi is that the respondents were informed that they have a right  to  be
searched in the presence of a gazetted officer or a  nearest  Magistrate  or
before J.S. Negi, the Superintendent, who  was  present  there.   They  were
given a written notice.  On that notice, respondent No.2  gave  his  consent
in Hindi in his handwriting  that  he  and  respondent  No.1  Parmanand  are
agreeable to be searched by PW-10 SI Qureshi in the presence  of  PW-5  J.S.
Negi, the Superintendent.  He signed on the notice  in  Hindi  and  put  his
thumb impression.   Respondent  No.1  Parmanand  did  not  sign.   There  is
nothing to  show  that  respondent  No.1  Parmanand  had  given  independent
consent. Search was conducted.  PW-10 SI Qureshi did not  find  anything  on
the person of the respondents.  Later on, he searched the bag which  was  in
the left hand of respondent No.1 - Parmanand.  In the bag,  he  found  black
colour material which was tested by  chemical  kit.   It  was  found  to  be
opium.
8.    In State of Punjab  v.  Balbir Singh[3], this Court held that  Section
50 of the NDPS Act is mandatory and  non-compliance  thereof  would  vitiate
trial.  In State of Himachal Pradesh  v.  Pirthi Chand[4], this  Court  held
that breach of Section 50 does not affect the trial.  There  were  divergent
views  on  this  aspect  and,  therefore,  a  reference  was  made  to   the
Constitution  Bench.   Out  of  the  three  questions  of  law,  which   the
Constitution Bench dealt with in State of Punjab  v.  Baldev  Singh[5],  the
question which is relevant for  the  present  case  is  whether  it  is  the
mandatory requirement of Section 50 of the NDPS Act  that  when  an  officer
duly authorized under Section 42 of the  NDPS  Act  is  about  to  search  a
person, he must inform him of his right under  sub-section  (1)  thereof  of
being taken to the nearest gazetted  officer  or  nearest  Magistrate.   The
conclusions drawn by the Constitution Bench, which  are  relevant  for  this
case could be quoted.

      “(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 person concerned 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 person concerned about the  existence
           of his right to be searched  before  a  gazetted  officer  or  a
           Magistrate would cause prejudice to an accused.


      (3)    That  a  search  made  by  an  empowered  officer,   on   prior
           information, without informing the person of his right  that  if
           he so requires, he shall be taken before a gazetted officer or a
           Magistrate for search and in case he so opts, failure to conduct
           his search before a gazetted officer or a  Magistrate,  may  not
           vitiate the trial but would render the recovery of  the  illicit
           article suspect and vitiate the conviction and  sentence  of  an
           accused, where the conviction has  been  recorded  only  on  the
           basis of the possession of the illicit article,  recovered  from
           his person, during  a  search  conducted  in  violation  of  the
           provisions of Section 50 of the Act.”

9.    In this case, the conviction is solely  based  on  recovery  of  opium
from the bag of respondent No.1 - Parmanand.  No  opium  was  found  on  his
person.  In Kalema Tumba  v.  State of Maharashtra[6], this Court held  that
if a person is carrying a bag or some other article with  him  and  narcotic
drug is recovered from it, it cannot be said that  it  was  found  from  his
person and, therefore, it is not necessary to make an offer  for  search  in
the presence of a gazetted officer or a Magistrate in compliance of  Section
50 of the NDPS Act.  In State of Himachal Pradesh v.  Pawan Kumar[7], three-
Judge Bench of this Court held that a person would mean a human  being  with
appropriate coverings and clothing and also footwear.  A bag,  briefcase  or
any such article or container etc. can under no circumstances be treated  as
a body of a human being.  Therefore, it is not  possible  to  include  these
articles within the ambit of the word “person” occurring in  Section  50  of
the NDPS Act.  The question is,  therefore,  whether  Section  50  would  be
applicable to this case because  opium  was  recovered  only  from  the  bag
carried by respondent No.1 - Parmanand.

10.   In Dilip & Anr.  v.  State of  Madhya  Pradesh[8],  on  the  basis  of
information, search of the person of the  accused  was  conducted.   Nothing
was found on their person.  But on search of the scooter they  were  riding,
opium contained  in  plastic  bag  was  recovered.   This  Court  held  that
provisions of Section 50 might not have been required to  be  complied  with
so far as the search of the scooter is concerned, but keeping  in  view  the
fact that the person of the accused was also searched, it was obligatory  on
the part of the officers to comply with the said provisions, which  was  not
done.  This Court confirmed the acquittal of the accused.

11.   In Union of India  v.  Shah Alam[9], heroin was first  recovered  from
the bags carried by the respondents  therein.   Thereafter,  their  personal
search was taken but nothing was recovered from their person.  It was  urged
that since personal search did not lead to any recovery, there was  no  need
to comply with the provisions of Section  50  of  the  NDPS  Act.  Following
Dilip, it was held that since the provisions of Section 50 of the  NDPS  Act
were not  complied  with,  the  High  Court  was  right  in  acquitting  the
respondents on that ground.

12.   Thus, if merely a bag carried by a person is  searched  without  there
being any search of his person, Section 50 of the  NDPS  Act  will  have  no
application.  But if the bag carried by him is searched and  his  person  is
also searched, Section 50 of the NDPS Act will have  application.   In  this
case, respondent No.1 Parmanand’s bag was searched.   From  the  bag,  opium
was recovered.  His personal search was also carried out.   Personal  search
of respondent No.2 Surajmal was also  conducted.   Therefore,  in  light  of
judgments of this Court mentioned in the preceding  paragraphs,  Section  50
of the NDPS Act will have application.

13.   It is now necessary to examine whether in this  case,  Section  50  of
the NDPS Act is breached or not.  The police witnesses have stated that  the
respondents were informed that they have a right to  be  searched  before  a
nearest gazetted officer or a nearest Magistrate or before PW-5  J.S.  Negi,
the Superintendent.  They were given a written notice.   As  stated  by  the
Constitution Bench in Baldev Singh,  it  is  not  necessary  to  inform  the
accused person, in writing, of his right under Section  50(1)  of  the  NDPS
Act.  His right can be orally communicated  to  him.   But,  in  this  case,
there was no individual communication of right.  A common notice  was  given
on which only respondent No.2 –  Surajmal  is  stated  to  have  signed  for
himself and for respondent No.1 – Parmanand.  Respondent No.1 Parmanand  did
not sign.

14.   In our opinion, a joint communication of  the  right  available  under
Section 50(1) of the NDPS Act  to  the  accused  would  frustrate  the  very
purport of Section 50.  Communication of the said right to  the  person  who
is about to be searched is not an empty formality.  It has a purpose.   Most
of  the  offences  under  the  NDPS  Act  carry  stringent  punishment  and,
therefore, the prescribed procedure has to be meticulously followed.   These
are minimum safeguards available to an accused against  the  possibility  of
false involvement.  The  communication  of  this  right  has  to  be  clear,
unambiguous  and  individual.   The  accused  must  be  made  aware  of  the
existence of such a right.  This right would be of  little  significance  if
the beneficiary thereof is not able to exercise it  for  want  of  knowledge
about its existence.  A joint communication of the right may  not  be  clear
or unequivocal.  It may create confusion.  It may  result  in  diluting  the
right.   We  are,  therefore,  of  the  view  that  the  accused   must   be
individually informed that under Section 50(1) of the NDPS  Act,  he  has  a
right to be searched before a nearest gazetted officer or before  a  nearest
Magistrate.  Similar view taken by  the  Punjab  &  Haryana  High  Court  in
Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma  meets
with our approval.  It  bears  repetition  to  state  that  on  the  written
communication of the right available under Section 50(1) of  the  NDPS  Act,
respondent No.2 Surajmal has signed for  himself  and  for  respondent  No.1
Parmanand.  Respondent No.1 Parmanand has not signed on it at all.   He  did
not give his independent consent.  It is only to be  presumed  that  he  had
authorized respondent No.2 Surajmal to sign on his  behalf  and  convey  his
consent.  Therefore, in  our  opinion,  the  right  has  not  been  properly
communicated to the respondents.  The search of the bag of  respondent  No.1
Parnanand and search of person of the respondents  is,  therefore,  vitiated
and resultantly their conviction is also vitiated.

15.   We also notice that PW-10 SI Qureshi  informed  the  respondents  that
they could be searched before the nearest Magistrate  or  before  a  nearest
gazetted officer or before PW-5 J.S. Negi, the  Superintendent,  who  was  a
part of the raiding party.  It is the prosecution case that the  respondents
informed the officers that they would like to be searched before  PW-5  J.S.
Negi by PW-10 SI Qureshi. This,  in  our  opinion,  is  again  a  breach  of
Section 50(1) of the NDPS Act.  The idea behind taking  an   accused   to  a
nearest Magistrate or a nearest gazetted officer, if he so requires,  is  to
give him a chance of being  searched  in  the  presence  of  an  independent
officer.  Therefore, it was improper  for  PW-10  SI  Qureshi  to  tell  the
respondents that a third alternative was available and that  they  could  be
searched before PW-5 J.S. Negi, the Superintendent,  who  was  part  of  the
raiding party.  PW-5 J.S. Negi cannot be called an independent  officer.  We
are not expressing any opinion on the question whether  if  the  respondents
had voluntarily expressed that they wanted to be searched before  PW-5  J.S.
Negi, the search would have been vitiated or  not.   But  PW-10  SI  Qureshi
could not have given a third option to the respondents  when  Section  50(1)
of the NDPS Act  does  not  provide  for  it  and  when  such  option  would
frustrate the provisions of Section 50(1) of the NDPS Act.  On  this  ground
also, in our opinion, the search conducted by PW-10 SI Qureshi is  vitiated.
 We have, therefore, no hesitation in  concluding  that  breach  of  Section
50(1) of the NDPS Act has  vitiated  the  search.   The  conviction  of  the
respondents was, therefore, illegal.   The  respondents  have  rightly  been
acquitted by the High Court.  It is not  possible  to  hold  that  the  High
Court’s view is perverse.  The appeal is, therefore, dismissed.

                              ….……………………………….J.
                                  (RANJANA PRAKASH DESAI)




                                  …………………………………..J.
                                   (MADAN B. LOKUR)
NEW DELHI;
FEBRUARY 28, 2014.



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[1]    1997(1) CRIMES 242
[2]    2001(1) CRIMES 586
[3]    (1994) 3 SCC 299
[4]    (1996) 2 SCC 37
[5]    (1999) 6 SCC 172
[6]    (1999) 8 SCC 257
[7]    (2005) 4 SCC 350
[8]    (2007) 1 SCC 450
[9]    (2009) 16 SCC 644

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