1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 459 OF 2017
SK RAJU @ ABDUL HAQUE @ JAGGA .....APPELLANT
Versus
STATE OF WEST BENGAL .....RESPONDENT
J U D G M E N T
Dr Dhananjaya Y Chandrachud
1 The present appeal, by special leave, is directed against a judgment
dated 19 February 2016 of a Division Bench of the Calcutta High Court. The
High Court upheld the conviction of the appellant by the Additional Sessions
Judge (“ASJ”) and Special Court under the Narcotic Drugs and Psychotropic
Substances Act 1985 (“the Act”). On 15 February 2014, the ASJ had convicted
the appellant of an offence punishable under Section 20(b)(ii)(C) of the Act. The
2
appellant was sentenced to 14 years of rigorous imprisonment and directed to
pay a fine of Rs 1,40,000.
2 The facts of the case are as follows. On 15 November 2011, SubInspector
Prasanta Kr. Das, Narcotics Cell, DD (PW-2) received information that
a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic
Garden Road, near Tiljala Police Station to supply narcotic drugs in the
afternoon. PW-2 sought permission from the Assistant Commissioner of Police,
Anti-Narcotics Department, DD to organize a raid (Exhibit-2). Permission was
granted by the superior officer on the same day and a raiding team consisting
of PW-2 and others reached the spot at about 12.50 pm. At around 1.40 pm,
the source of the information pointed out to the appellant who was coming along
Picnic Garden Road. The appellant was intercepted and detained immediately
by the raiding party in front of Falguni Club. The appellant was informed about
the reasons for his detention and the identities of the raiding party were
disclosed to him. Subsequently, the appellant also disclosed his identity to the
raiding party. PW-5 was one of the two independent witnesses who agreed to
be a witness to this search. The appellant was informed about his legal right to
be searched either in the presence of a magistrate or a gazetted officer (Exhibit3).
The appellant opted for being searched by a gazetted officer. A gazetted
officer, Inspector Joysurja Mukherjee (“PW-4”), arrived on the scene at about
3.20 pm. He provided the appellant with a “second option”. The appellant was
asked by PW-4 whether he wished to be searched in the presence of a gazetted
3
officer or a magistrate (Exhibit-4). Once again, the appellant consented to be
searched in the presence of a gazetted officer. PW-4 then inquired of the
appellant whether he wanted to search PW-2 before the latter would carry out
his search. The appellant agreed to search PW-2 before his own search was
carried out by PW-2. No narcotic substance was recovered from the person of
PW-2. PW-2 recovered nineteen “deep brown / blackish broken rectangular
sheets” from a black polythene packet which was inside a biscuit colour jute
bag, which the appellant was carrying in his right hand. The sheets were tested
by PW-2 on the spot with the help of a test kit. The substance was found to be
charas. The substance was also weighed using a weighing scale. The appellant
was found to be in possession of 1.5 kilograms of charas. Cash amounting to
Rs. 2,400/- was recovered from the trouser of the appellant.
3 Learned counsel for the appellant has argued that there was noncompliance
with Section 42 of the Act. After PW-2 was intimated about the
appellant’s arrival, he sought permission from the Assistant Commissioner of
Police, Anti-Narcotics Department. Upon receipt of the letter of permission from
the Assistant Commissioner, PW-2 proceeded to the place of the occurrence.
PW-2 admitted in his cross-examination that he was aware of the gravity of the
need for compliance with Section 42. However, apart from a letter seeking
permission to act on the information which was addressed to a superior officer,
he did not (it was urged) diarise it elsewhere. Learned counsel urged that PW2
had not complied with the mandatory requirements of Section 42, as a result
4
of which the trial stood vitiated. He has relied on the following decisions of this
Court to buttress the submission: Abdul Rashid Ibrahim Mansuri v State of
Gujarat (“Mansuri”),
1 Directorate of Revenue v Mohammed Nisar Holia
(“Holia”)2 and State of Rajasthan v Jagraj Singh (“Jagraj”).3
4 Learned counsel for the appellant also submitted that Section 50 has also
not been complied with. According to him, not only was the bag of the appellant
searched, but a search of the person of the appellant also resulted in the
recovery of cash in the amount of Rs. 2,400/- from the left pocket of his trouser.
Hence, it was urged by the learned counsel that though Section 50 was
mandatorily required to be complied with, there was a breach of observance.
Since the appellant was merely given an ‘option’ by PW-2 and PW-4 to be
searched before a gazetted officer and was not informed that it was his legal
right to be searched before a gazetted officer or a magistrate, the search was,
it was urged, vitiated. On this aspect, learned counsel for the appellant has
relied on the following judgments of this Court: Myla Venkateswarlu v State of
Andhra Pradesh (“Venkateswarlu”),
4 State of Rajasthan v Parmanand
(“Parmanand”)5 and Namdi Francis Nwazor v Union of India (“Namdi”).
6
On the other hand, the learned counsel appearing on behalf of the respondentState
has supported the judgment of the High Court and the legality of the
1
(2000) 2 SCC 513.
2
(2008) 2 SCC 370.
3
(2016) 11 SCC 687.
4
(2012) 5 SCC 226.
5
(2014) 5 SCC 345.
6
(1998) 8 SCC 534.
5
conviction. He argued that since the search was carried out in a public place,
this case falls solely within the ambit of Section 43 and compliance with Section
42 was not necessary. Learned counsel for the respondent-State also urged
that Section 50 is not attracted when the search involves the search of a bag or
an article belonging to a person.
5 Section 42 of the Act deals with the power of entry, search, seizure and
arrest without warrant or authorization. It reads thus:
“42. Power of entry, search, seizure and arrest without warrant
or authorisation.—
(1) Any such officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central excise,
narcotics, customs, revenue intelligence or any other
department of the Central Government including para-military
forces or armed forces as is empowered in this behalf by
general or special order by the Central Government, or any
such officer (being an officer superior in rank to a peon, sepoy
or constable) of the revenue, drugs control, excise, police or
any other department of a State Government as is empowered
in this behalf by general or special order of the State
Government, if he has reason to believe from personal
knowledge or information given by any person and taken down
in writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable
under this Act has been committed or any document or other
article which may furnish evidence of the commission of such
offence or any illegally acquired property or any document or
other article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is kept or concealed in
any building, conveyance or enclosed place, may between
sunrise and sunset,—
(a) enter into and search any such building, conveyance or
place;
(b) in case of resistance, break open any door and remove any
obstacle to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
6
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of
this Act; and
(d) detain and search, and, if he thinks proper, arrest any
person whom he has reason to believe to have committed any
offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture
of manufactured drugs or psychotropic substances or
controlled substances granted under this Act or any rule or
order made thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that
a search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility
for the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under
the proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior.”
Section 43 of the Act confers powers on the empowered officer to seize a
substance and arrest a suspect in a public place. It provides thus:
“43. Power of seizure and arrest in public place.— Any officer
of any of the departments mentioned in section 42 may—
(a) seize in any public place or in transit, any narcotic drug or
psychotropic substance or controlled substance in respect of
which he has reason to believe an offence punishable under
this Act has been committed, and, along with such drug or
substance, any animal or conveyance or article liable to
confiscation under this Act, any document or other article which
he has reason to believe may furnish evidence of the
commission of an offence punishable under this Act or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to
believe to have committed an offence punishable under this
7
Act, and if such person has any narcotic drug or psychotropic
substance or controlled substance in his possession and such
possession appears to him to be unlawful, arrest him and any
other person in his company.
Explanation.— For the purposes of this section, the
expression “public place” includes any public
conveyance, hotel, shop, or other place intended for use
by, or accessible to, the public.” [Emphasis supplied]
6 We are unable to accept the submission made by the learned counsel for
the appellant that Section 42 is attracted to the facts of the present case. In
State of Punjab v Baldev Singh (“Baldev Singh”),
7 Chief Justice Dr A S
Anand speaking for a Constitution Bench of this Court, held:
“The material difference between the provisions of Section 43
and Section 42 is that whereas Section 42 requires
recording of reasons for belief and for taking down of
information received in writing with regard to the
commission of an offence before conducting search and
seizure, Section 43 does not contain any such provision and
as such while acting under Section 43 of the Act, the
empowered officer has the power of seizure of the article
etc. and arrest of a person who is found to be in
possession of any Narcotic Drug or Psychotropic
Substances in a public place where such possession
appears to him to be unlawful.” [Emphasis supplied]
In Narayanaswamy Ravishankar v Assistant Director, Directorate of
Revenue Intelligence,
8 a three judge Bench of this Court considered whether
the empowered officer was bound to comply with the mandatory provisions of
Section 42 before recovering heroin from the suitcase of the appellant at the
airport and subsequently arresting him. Answering the above question in the
negative, the Court held:
7
(1999) 6 SCC 172.
8
(2002) 8 SCC 7.
8
“In the instant case, according to the documents on record
and the evidence of the witnesses, the search and seizure
took place at the airport which is a public place. This being so,
it is the provisions of Section 43 of the NDPS Act which would
be applicable. Further, as Section 42 of the NDPS Act was not
applicable in the present case, the seizure having been
effected in a public place, the question of non-compliance, if
any, of the provisions of Section 42 of the NDPS Act is wholly
irrelevant.”
In Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan,
9 a two
judge Bench of this Court considered whether a police officer who had prior
information was required to comply with the provisions of Section 42 before
seizing contraband and arresting the appellant who was travelling on a
motorcycle on the highway. Answering the above question in the negative, the
Court held:
“Section 42 comprises of two components. One relates to the
basis of information i.e.: (i) from personal knowledge, and (ii)
information given by person and taken down in writing. The
second is that the information must relate to commission
of offence punishable under Chapter IV and/or keeping or
concealment of document or article in any building,
conveyance or enclosed place which may furnish
evidence of commission of such offence. Unless both the
components exist Section 42 has no application. Subsection
(2) mandates, as was noted in Baldev Singh case that
where an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the
proviso thereto, he shall forthwith send a copy thereof to his
immediate official superior. Therefore, sub-section (2) only
comes into operation where the officer concerned does the
enumerated acts, in case any offence under Chapter IV has
been committed or documents etc. are concealed in any
building, conveyance or enclosed place. Therefore, the
commission of the act or concealment of document etc.
must be in any building, conveyance or enclosed place.”
[Emphasis supplied]
9
(2004) 2 SCC 608; Rajendra v State of M.P ., (2004) 1 SCC 432.
9
7 An empowered officer under Section 42(1) is obligated to reduce to
writing the information received by him, only when an offence punishable under
the Act has been committed in any building, conveyance or an enclosed place,
or when a document or an article is concealed in a building, conveyance or an
enclosed place. Compliance with Section 42, including recording of information
received by the empowered officer, is not mandatory, when an offence
punishable under the Act was not committed in a building, conveyance or an
enclosed place. Section 43 is attracted in situations where the seizure and
arrest are conducted in a public place, which includes any public conveyance,
hotel, shop, or other place intended for use by, or accessible to, the public.
8 The appellant was walking along the Picnic Garden Road. He was
intercepted and detained immediately by the raiding party in front of Falguni
Club, which was not a building, conveyance or an enclosed place. The place of
occurrence was accessible to the public and fell within the ambit of the phrase
“public place” in the explanation to Section 43. Section 42 had no application.
9 The cases relied on by the learned counsel for the appellant will also not
apply in the context of the facts before us. In Mansuri, an auto-rickshaw driver
was intercepted by police personnel. Four gunny bags of charas were
recovered from the auto-rickshaw. The police officer who had prior information
about transportation of some narcotic substance, had neither taken down the
information before carrying out the seizure and arrest, nor apprised his superior
10
officer. He contended that the action taken by him was under Section 43 and
not Section 42. Rejecting the argument of the State, this Court held that
compliance with Section 42 was required as the auto-rickshaw was a private
vehicle and not a public conveyance as contemplated under Section 43.
Similarly, in Jagraj, contraband was recovered from a jeep which was
intercepted by police personnel on a public road after receiving prior
information. The police officer who had received the information, admitted to not
taking it down in writing, contending that Section 43 would be applicable.
Rejecting the argument of the State, this Court held that the jeep which was
intercepted, was not a public conveyance within the meaning of Section 43 and
compliance with Section 42(1) was therefore mandatory. In Holia, Mandrax
tablets were recovered from the hotel room of the respondent. The information
was not reduced to writing by the officer who had first received the information.
The State claimed that compliance with Section 42 was not required as the hotel
was a public place. Rejecting the submission of the State, this Court held that
while a hotel is a public place, a hotel room inside it is not a public place. This
Court held thus:
“Section 43, on plain reading of the Act, may not attract the
rigours of Section 42 thereof. That means that even subjective
satisfaction on the part of the authority, as is required under
sub-section (1) of Section 42, need not be complied with, only
because the place whereat search is to be made is a public
place. If Section 43 is to be treated as an exception to Section
42, it is required to be strictly complied with … It is also
possible to contend that where a search is required to be
made at a public place which is open to the general public,
Section 42 would have no application but it may be
another thing to contend that search is being made on
prior information and there would be enough time for
compliance of reducing the information to writing,
11
informing the same to the superior officer and obtain his
permission as also recording the reasons therefore
coupled with the fact that the place which is required to be
searched is not open to public although situated in a
public place as, for example, room of a hotel, whereas
hotel is a public place, a room occupied by a guest may
not be. He is entitled to his right of privacy. Nobody, even
the staff of the hotel, can walk into his room without his
permission. Subject to the ordinary activities in regard to
maintenance and/or housekeeping of the room, the guest is
entitled to maintain his privacy.” [Emphasis supplied]
There is hence no substance in the first submission.
10 Section 50 of the Act deals with conditions under which search of persons
shall be conducted. It states:
“50. Conditions under which search of persons shall be
conducted.—
(1) When any officer duly authorised under section 42 is about
to search any person under the provisions of section 41,
section 42 or section 43, he shall, if such person so requires,
take such person without unnecessary delay to nearest
Gazetted Officer of any of the departments mentioned in
section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any
such person is brought shall, if he sees no reasonable ground
for search, forthwith discharge the person but otherwise shall
direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person to be
searched to the nearest Gazetted Officer or Magistrate without
the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead
of taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under
12
section100 of the Code of Criminal Procedure, 1973 (2 of
1974).
(6) After a search is conducted under sub-section (5), the
officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours send
a copy thereof to his immediate official superior.”
According to Section 50(1), an empowered officer should necessarily inform the
suspect about his legal right, if he so requires, to be searched in the presence
of a gazetted officer or a magistrate. In Vijaysinh Chandubha Jadeja v State
of Gujarat (“Vijaysinh”),
10 a Constitution Bench of this Court interpreted
Section 50 thus:
“The mandate of Section 50 is precise and clear, viz. if the
person intended to be searched expresses to the authorised
officer his desire to be taken to the nearest gazetted officer or
the Magistrate, he cannot be searched till the gazetted officer
or the Magistrate, as the case may be, directs the authorised
officer to do so … 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 … 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-
10 (2011) 1 SCC 609.
13
section (1) of Section 50 nor it is in consonance with the dictum
laid down in Baldev Singh's case (supra).”
The principle which emerges from Vijaysinh is that the concept of “substantial
compliance” with the requirement of Section 50 is neither in accordance with
the law laid down in Baldev Singh, nor can it be construed from its language.
[Reference may also be made to the decision of a two judge Bench of this Court
in Venkateswarlu]. Therefore, strict compliance with Section 50(1) by the
empowered officer is mandatory. Section 50, however, applies only in the case
of a search of a person. In Baldev Singh, the Court held “on its plain reading,
Section 50 would come into play only in the case of a search of a person as
distinguished from search of any premises, etc.” In State of Himachal Pradesh
v Pawan Kumar (“Pawan Kumar”),
11 a three judge Bench of this Court held
that the search of an article which was being carried by a person in his hand, or
on his shoulder or head, etc., would not attract Section 50. It was held thus:
“In common parlance it would be said that a person is carrying
a particular article, specifying the manner in which it was
carried like hand, shoulder, back or head, etc. Therefore, it is
not possible to include these articles within the ambit of the
word “person” occurring in Section 50 of the Act …After the
decision in Baldev Singh, this Court has consistently held that
Section 50 would only apply to search of a person and not to
any bag, article or container, etc. being carried by him.”
In Parmanand, on a search of the person of the respondent, no substance was
found. However, subsequently, opium was recovered from the bag of the
respondent. A two judge Bench of this Court considered whether compliance
11 (2005) 4 SCC 350.
14
with Section 50(1) was required. This Court held that the empowered officer
was required to comply with the requirements of Section 50(1) as the person of
the respondent was also searched. [Reference may also be made to the
decision of a two judge Bench of this Court in Dilip v State of Madhya
Pradesh]
12. It was held thus:
“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.”
Moreover, in the above case, the empowered officer at the time of conducting
the search informed the respondent that he could be searched before the
nearest Magistrate or before the nearest gazetted officer or before the
Superintendent, who was also a part of the raiding party. The Court held that
the search of the respondent was not in consonance with the requirements of
Section 50(1) as the empowered officer erred in giving the respondent an option
of being search before the Superintendent, who was not an independent officer.
It was held thus:
“We also notice that PW 10 SI Qureshi informed the
respondents that they could be searched before the nearest
Magistrate or before the 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 the nearest Magistrate or the 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
12 (2007) 1 SCC 450.
15
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.”
The question which arises before us is whether Section 50(1) was required to
be complied with when charas was recovered only from the bag of the appellant
and no charas was found on his person. Further, if the first question is answered
in the affirmative, whether the requirements of Section 50 were strictly complied
with by PW-2 and PW-4.
11 As evidenced by Exhibit-3, a first option was given to the appellant. PW2
informed him that it was his legal right to be searched either in the presence
of a magistrate or in the presence of a gazetted officer. The appellant was then
asked to give his option by indicating whether he wanted to be searched by a
magistrate or a gazetted officer. The appellant indicated that he wanted the
search to be carried out in the presence of a gazetted officer. When PW-4
arrived, he was introduced to the detainee as a gazetted officer. As evidenced
by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him
again, whether he wanted to be searched in the presence of a gazetted officer
or in the presence of a magistrate. The appellant reiterated his desire to be
16
searched in the presence of a gazetted officer. Before the search of the
appellant commenced, the gazetted officer asked the appellant whether he
wanted to search PW-2 before his own search was carried out by PW-2. The
appellant agreed to search PW-2 before the latter carried out his search. On
conducting the search, only personal belongings of PW-2 were found by the
appellant. On the search of the appellant in the presence of the gazetted officer,
a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash
in the denomination of 24 notes of Rs. 100/- each was found in the left pocket
of the appellant’s trouser. When the bag was opened, a black polythene cover
containing nineteen rectangular broken sheets of a blackish / deep brown colour
weighing 1.5 kilograms was recovered. The sheets were tested and were found
to be charas.
PW-2 conducted a search of the bag of the appellant as well as of the
appellant’s trousers. Therefore, the search conducted by PW-2 was not only of
the bag which the appellant was carrying, but also of the appellant’s person.
Since the search of the person of the appellant was also involved, Section 50
would be attracted in this case. Accordingly, PW-2 was required to comply with
the requirements of Section 50(1). As soon as the search of a person takes
place, the requirement of mandatory compliance with Section 50 is attracted,
irrespective of whether contraband is recovered from the person of the detainee
or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal
right to be searched in the presence of either a gazetted officer or a magistrate.
17
From Exhibit-3, it can be discerned that the appellant was informed of his legal
right to be searched in the presence of a magistrate or a gazetted officer. The
appellant opted for the latter alternative. Exhibit-4 is a record of the events after
the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was
once again asked by him, whether he wished to be searched in the presence of
a gazetted officer or a magistrate. This was the second option which was
presented to him. When he reiterated his desire to be searched before a
gazetted officer, PW-4 inquired of the appellant whether he wished to search
PW-2 before his own search was conducted by PW-2. The appellant agreed to
search PW-2. Only the personal belongings of PW-2 were found by the
appellant. It was only after this that a search of the appellant was conducted
and charas recovered. Before the appellant’s search was conducted, both PW2
and PW-4 on different occasions apprised the appellant of his legal right to be
searched either in the presence of a gazetted officer or a magistrate. The
options given by both PW-2 and PW-4 were unambiguous. Merely because the
appellant was given an option of searching PW-2 before the latter conducted
his search, would not vitiate the search. In Parmanand, in addition to the option
of being searched by the gazetted officer or the magistrate, the detainee was
given a ‘third’ alternative by the empowered officer which was to be searched
by an officer who was a part of the raiding team. This was found to be contrary
to the intent of Section 50(1). The option given to the appellant of searching
PW-2 in the case at hand, before the latter searched the appellant, did not vitiate
the process in which a search of the appellant was conducted. The search of
18
the appellant was as a matter of fact conducted in the presence of PW-4, a
gazetted officer, in consonance with the voluntary communication made by the
appellant to both PW-2 and PW-4. There was strict compliance with the
requirements of Section 50(1) as stipulated by this Court in Vijaysinh.
12 As we have already held that Section 50 was attracted in the present
case, we do not need to decide on the applicability of Namdi to the facts of the
present case. We have held that Section 50 was complied with. Having regard
to the above position, we do not find any merit in the appeal.
13 The Criminal Appeal shall accordingly stand dismissed.
...………............................................CJI
[DIPAK MISRA]
...…….…...............................................J
[Dr Dhananjaya Y Chandrachud]
.….……….............................................J
[INDIRA BANERJEE]
New Delhi;
September 05, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 459 OF 2017
SK RAJU @ ABDUL HAQUE @ JAGGA .....APPELLANT
Versus
STATE OF WEST BENGAL .....RESPONDENT
J U D G M E N T
Dr Dhananjaya Y Chandrachud
1 The present appeal, by special leave, is directed against a judgment
dated 19 February 2016 of a Division Bench of the Calcutta High Court. The
High Court upheld the conviction of the appellant by the Additional Sessions
Judge (“ASJ”) and Special Court under the Narcotic Drugs and Psychotropic
Substances Act 1985 (“the Act”). On 15 February 2014, the ASJ had convicted
the appellant of an offence punishable under Section 20(b)(ii)(C) of the Act. The
2
appellant was sentenced to 14 years of rigorous imprisonment and directed to
pay a fine of Rs 1,40,000.
2 The facts of the case are as follows. On 15 November 2011, SubInspector
Prasanta Kr. Das, Narcotics Cell, DD (PW-2) received information that
a drug dealer would be in the vicinity of Tiljala Falguni Club, 138B/1, Picnic
Garden Road, near Tiljala Police Station to supply narcotic drugs in the
afternoon. PW-2 sought permission from the Assistant Commissioner of Police,
Anti-Narcotics Department, DD to organize a raid (Exhibit-2). Permission was
granted by the superior officer on the same day and a raiding team consisting
of PW-2 and others reached the spot at about 12.50 pm. At around 1.40 pm,
the source of the information pointed out to the appellant who was coming along
Picnic Garden Road. The appellant was intercepted and detained immediately
by the raiding party in front of Falguni Club. The appellant was informed about
the reasons for his detention and the identities of the raiding party were
disclosed to him. Subsequently, the appellant also disclosed his identity to the
raiding party. PW-5 was one of the two independent witnesses who agreed to
be a witness to this search. The appellant was informed about his legal right to
be searched either in the presence of a magistrate or a gazetted officer (Exhibit3).
The appellant opted for being searched by a gazetted officer. A gazetted
officer, Inspector Joysurja Mukherjee (“PW-4”), arrived on the scene at about
3.20 pm. He provided the appellant with a “second option”. The appellant was
asked by PW-4 whether he wished to be searched in the presence of a gazetted
3
officer or a magistrate (Exhibit-4). Once again, the appellant consented to be
searched in the presence of a gazetted officer. PW-4 then inquired of the
appellant whether he wanted to search PW-2 before the latter would carry out
his search. The appellant agreed to search PW-2 before his own search was
carried out by PW-2. No narcotic substance was recovered from the person of
PW-2. PW-2 recovered nineteen “deep brown / blackish broken rectangular
sheets” from a black polythene packet which was inside a biscuit colour jute
bag, which the appellant was carrying in his right hand. The sheets were tested
by PW-2 on the spot with the help of a test kit. The substance was found to be
charas. The substance was also weighed using a weighing scale. The appellant
was found to be in possession of 1.5 kilograms of charas. Cash amounting to
Rs. 2,400/- was recovered from the trouser of the appellant.
3 Learned counsel for the appellant has argued that there was noncompliance
with Section 42 of the Act. After PW-2 was intimated about the
appellant’s arrival, he sought permission from the Assistant Commissioner of
Police, Anti-Narcotics Department. Upon receipt of the letter of permission from
the Assistant Commissioner, PW-2 proceeded to the place of the occurrence.
PW-2 admitted in his cross-examination that he was aware of the gravity of the
need for compliance with Section 42. However, apart from a letter seeking
permission to act on the information which was addressed to a superior officer,
he did not (it was urged) diarise it elsewhere. Learned counsel urged that PW2
had not complied with the mandatory requirements of Section 42, as a result
4
of which the trial stood vitiated. He has relied on the following decisions of this
Court to buttress the submission: Abdul Rashid Ibrahim Mansuri v State of
Gujarat (“Mansuri”),
1 Directorate of Revenue v Mohammed Nisar Holia
(“Holia”)2 and State of Rajasthan v Jagraj Singh (“Jagraj”).3
4 Learned counsel for the appellant also submitted that Section 50 has also
not been complied with. According to him, not only was the bag of the appellant
searched, but a search of the person of the appellant also resulted in the
recovery of cash in the amount of Rs. 2,400/- from the left pocket of his trouser.
Hence, it was urged by the learned counsel that though Section 50 was
mandatorily required to be complied with, there was a breach of observance.
Since the appellant was merely given an ‘option’ by PW-2 and PW-4 to be
searched before a gazetted officer and was not informed that it was his legal
right to be searched before a gazetted officer or a magistrate, the search was,
it was urged, vitiated. On this aspect, learned counsel for the appellant has
relied on the following judgments of this Court: Myla Venkateswarlu v State of
Andhra Pradesh (“Venkateswarlu”),
4 State of Rajasthan v Parmanand
(“Parmanand”)5 and Namdi Francis Nwazor v Union of India (“Namdi”).
6
On the other hand, the learned counsel appearing on behalf of the respondentState
has supported the judgment of the High Court and the legality of the
1
(2000) 2 SCC 513.
2
(2008) 2 SCC 370.
3
(2016) 11 SCC 687.
4
(2012) 5 SCC 226.
5
(2014) 5 SCC 345.
6
(1998) 8 SCC 534.
5
conviction. He argued that since the search was carried out in a public place,
this case falls solely within the ambit of Section 43 and compliance with Section
42 was not necessary. Learned counsel for the respondent-State also urged
that Section 50 is not attracted when the search involves the search of a bag or
an article belonging to a person.
5 Section 42 of the Act deals with the power of entry, search, seizure and
arrest without warrant or authorization. It reads thus:
“42. Power of entry, search, seizure and arrest without warrant
or authorisation.—
(1) Any such officer (being an officer superior in rank to a peon,
sepoy or constable) of the departments of central excise,
narcotics, customs, revenue intelligence or any other
department of the Central Government including para-military
forces or armed forces as is empowered in this behalf by
general or special order by the Central Government, or any
such officer (being an officer superior in rank to a peon, sepoy
or constable) of the revenue, drugs control, excise, police or
any other department of a State Government as is empowered
in this behalf by general or special order of the State
Government, if he has reason to believe from personal
knowledge or information given by any person and taken down
in writing that any narcotic drug, or psychotropic substance, or
controlled substance in respect of which an offence punishable
under this Act has been committed or any document or other
article which may furnish evidence of the commission of such
offence or any illegally acquired property or any document or
other article which may furnish evidence of holding any illegally
acquired property which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act is kept or concealed in
any building, conveyance or enclosed place, may between
sunrise and sunset,—
(a) enter into and search any such building, conveyance or
place;
(b) in case of resistance, break open any door and remove any
obstacle to such entry;
(c) seize such drug or substance and all materials used in the
manufacture thereof and any other article and any animal or
6
conveyance which he has reason to believe to be liable to
confiscation under this Act and any document or other article
which he has reason to believe may furnish evidence of the
commission of any offence punishable under this Act or furnish
evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA of
this Act; and
(d) detain and search, and, if he thinks proper, arrest any
person whom he has reason to believe to have committed any
offence punishable under this Act:
Provided that in respect of holder of a licence for manufacture
of manufactured drugs or psychotropic substances or
controlled substances granted under this Act or any rule or
order made thereunder, such power shall be exercised by an
officer not below the rank of sub-inspector:
Provided further that if such officer has reason to believe that
a search warrant or authorisation cannot be obtained without
affording opportunity for the concealment of evidence or facility
for the escape of an offender, he may enter and search such
building, conveyance or enclosed place at any time between
sunset and sunrise after recording the grounds of his belief.
(2) Where an officer takes down any information in writing
under sub-section (1) or records grounds for his belief under
the proviso thereto, he shall within seventy-two hours send a
copy thereof to his immediate official superior.”
Section 43 of the Act confers powers on the empowered officer to seize a
substance and arrest a suspect in a public place. It provides thus:
“43. Power of seizure and arrest in public place.— Any officer
of any of the departments mentioned in section 42 may—
(a) seize in any public place or in transit, any narcotic drug or
psychotropic substance or controlled substance in respect of
which he has reason to believe an offence punishable under
this Act has been committed, and, along with such drug or
substance, any animal or conveyance or article liable to
confiscation under this Act, any document or other article which
he has reason to believe may furnish evidence of the
commission of an offence punishable under this Act or any
document or other article which may furnish evidence of
holding any illegally acquired property which is liable for
seizure or freezing or forfeiture under Chapter VA of this Act;
(b) detain and search any person whom he has reason to
believe to have committed an offence punishable under this
7
Act, and if such person has any narcotic drug or psychotropic
substance or controlled substance in his possession and such
possession appears to him to be unlawful, arrest him and any
other person in his company.
Explanation.— For the purposes of this section, the
expression “public place” includes any public
conveyance, hotel, shop, or other place intended for use
by, or accessible to, the public.” [Emphasis supplied]
6 We are unable to accept the submission made by the learned counsel for
the appellant that Section 42 is attracted to the facts of the present case. In
State of Punjab v Baldev Singh (“Baldev Singh”),
7 Chief Justice Dr A S
Anand speaking for a Constitution Bench of this Court, held:
“The material difference between the provisions of Section 43
and Section 42 is that whereas Section 42 requires
recording of reasons for belief and for taking down of
information received in writing with regard to the
commission of an offence before conducting search and
seizure, Section 43 does not contain any such provision and
as such while acting under Section 43 of the Act, the
empowered officer has the power of seizure of the article
etc. and arrest of a person who is found to be in
possession of any Narcotic Drug or Psychotropic
Substances in a public place where such possession
appears to him to be unlawful.” [Emphasis supplied]
In Narayanaswamy Ravishankar v Assistant Director, Directorate of
Revenue Intelligence,
8 a three judge Bench of this Court considered whether
the empowered officer was bound to comply with the mandatory provisions of
Section 42 before recovering heroin from the suitcase of the appellant at the
airport and subsequently arresting him. Answering the above question in the
negative, the Court held:
7
(1999) 6 SCC 172.
8
(2002) 8 SCC 7.
8
“In the instant case, according to the documents on record
and the evidence of the witnesses, the search and seizure
took place at the airport which is a public place. This being so,
it is the provisions of Section 43 of the NDPS Act which would
be applicable. Further, as Section 42 of the NDPS Act was not
applicable in the present case, the seizure having been
effected in a public place, the question of non-compliance, if
any, of the provisions of Section 42 of the NDPS Act is wholly
irrelevant.”
In Krishna Kanwar (Smt) Alias Thakuraeen v State of Rajasthan,
9 a two
judge Bench of this Court considered whether a police officer who had prior
information was required to comply with the provisions of Section 42 before
seizing contraband and arresting the appellant who was travelling on a
motorcycle on the highway. Answering the above question in the negative, the
Court held:
“Section 42 comprises of two components. One relates to the
basis of information i.e.: (i) from personal knowledge, and (ii)
information given by person and taken down in writing. The
second is that the information must relate to commission
of offence punishable under Chapter IV and/or keeping or
concealment of document or article in any building,
conveyance or enclosed place which may furnish
evidence of commission of such offence. Unless both the
components exist Section 42 has no application. Subsection
(2) mandates, as was noted in Baldev Singh case that
where an officer takes down any information in writing under
sub-section (1) or records grounds for his belief under the
proviso thereto, he shall forthwith send a copy thereof to his
immediate official superior. Therefore, sub-section (2) only
comes into operation where the officer concerned does the
enumerated acts, in case any offence under Chapter IV has
been committed or documents etc. are concealed in any
building, conveyance or enclosed place. Therefore, the
commission of the act or concealment of document etc.
must be in any building, conveyance or enclosed place.”
[Emphasis supplied]
9
(2004) 2 SCC 608; Rajendra v State of M.P ., (2004) 1 SCC 432.
9
7 An empowered officer under Section 42(1) is obligated to reduce to
writing the information received by him, only when an offence punishable under
the Act has been committed in any building, conveyance or an enclosed place,
or when a document or an article is concealed in a building, conveyance or an
enclosed place. Compliance with Section 42, including recording of information
received by the empowered officer, is not mandatory, when an offence
punishable under the Act was not committed in a building, conveyance or an
enclosed place. Section 43 is attracted in situations where the seizure and
arrest are conducted in a public place, which includes any public conveyance,
hotel, shop, or other place intended for use by, or accessible to, the public.
8 The appellant was walking along the Picnic Garden Road. He was
intercepted and detained immediately by the raiding party in front of Falguni
Club, which was not a building, conveyance or an enclosed place. The place of
occurrence was accessible to the public and fell within the ambit of the phrase
“public place” in the explanation to Section 43. Section 42 had no application.
9 The cases relied on by the learned counsel for the appellant will also not
apply in the context of the facts before us. In Mansuri, an auto-rickshaw driver
was intercepted by police personnel. Four gunny bags of charas were
recovered from the auto-rickshaw. The police officer who had prior information
about transportation of some narcotic substance, had neither taken down the
information before carrying out the seizure and arrest, nor apprised his superior
10
officer. He contended that the action taken by him was under Section 43 and
not Section 42. Rejecting the argument of the State, this Court held that
compliance with Section 42 was required as the auto-rickshaw was a private
vehicle and not a public conveyance as contemplated under Section 43.
Similarly, in Jagraj, contraband was recovered from a jeep which was
intercepted by police personnel on a public road after receiving prior
information. The police officer who had received the information, admitted to not
taking it down in writing, contending that Section 43 would be applicable.
Rejecting the argument of the State, this Court held that the jeep which was
intercepted, was not a public conveyance within the meaning of Section 43 and
compliance with Section 42(1) was therefore mandatory. In Holia, Mandrax
tablets were recovered from the hotel room of the respondent. The information
was not reduced to writing by the officer who had first received the information.
The State claimed that compliance with Section 42 was not required as the hotel
was a public place. Rejecting the submission of the State, this Court held that
while a hotel is a public place, a hotel room inside it is not a public place. This
Court held thus:
“Section 43, on plain reading of the Act, may not attract the
rigours of Section 42 thereof. That means that even subjective
satisfaction on the part of the authority, as is required under
sub-section (1) of Section 42, need not be complied with, only
because the place whereat search is to be made is a public
place. If Section 43 is to be treated as an exception to Section
42, it is required to be strictly complied with … It is also
possible to contend that where a search is required to be
made at a public place which is open to the general public,
Section 42 would have no application but it may be
another thing to contend that search is being made on
prior information and there would be enough time for
compliance of reducing the information to writing,
11
informing the same to the superior officer and obtain his
permission as also recording the reasons therefore
coupled with the fact that the place which is required to be
searched is not open to public although situated in a
public place as, for example, room of a hotel, whereas
hotel is a public place, a room occupied by a guest may
not be. He is entitled to his right of privacy. Nobody, even
the staff of the hotel, can walk into his room without his
permission. Subject to the ordinary activities in regard to
maintenance and/or housekeeping of the room, the guest is
entitled to maintain his privacy.” [Emphasis supplied]
There is hence no substance in the first submission.
10 Section 50 of the Act deals with conditions under which search of persons
shall be conducted. It states:
“50. Conditions under which search of persons shall be
conducted.—
(1) When any officer duly authorised under section 42 is about
to search any person under the provisions of section 41,
section 42 or section 43, he shall, if such person so requires,
take such person without unnecessary delay to nearest
Gazetted Officer of any of the departments mentioned in
section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person
until he can bring him before the Gazetted Officer or the
Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any
such person is brought shall, if he sees no reasonable ground
for search, forthwith discharge the person but otherwise shall
direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has
reason to believe that it is not possible to take the person to be
searched to the nearest Gazetted Officer or Magistrate without
the possibility of the person to be searched parting with
possession of any narcotic drug or psychotropic substance, or
controlled substance or article or document, he may, instead
of taking such person to the nearest Gazetted Officer or
Magistrate, proceed to search the person as provided under
12
section100 of the Code of Criminal Procedure, 1973 (2 of
1974).
(6) After a search is conducted under sub-section (5), the
officer shall record the reasons for such belief which
necessitated such search and within seventy-two hours send
a copy thereof to his immediate official superior.”
According to Section 50(1), an empowered officer should necessarily inform the
suspect about his legal right, if he so requires, to be searched in the presence
of a gazetted officer or a magistrate. In Vijaysinh Chandubha Jadeja v State
of Gujarat (“Vijaysinh”),
10 a Constitution Bench of this Court interpreted
Section 50 thus:
“The mandate of Section 50 is precise and clear, viz. if the
person intended to be searched expresses to the authorised
officer his desire to be taken to the nearest gazetted officer or
the Magistrate, he cannot be searched till the gazetted officer
or the Magistrate, as the case may be, directs the authorised
officer to do so … 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 … 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-
10 (2011) 1 SCC 609.
13
section (1) of Section 50 nor it is in consonance with the dictum
laid down in Baldev Singh's case (supra).”
The principle which emerges from Vijaysinh is that the concept of “substantial
compliance” with the requirement of Section 50 is neither in accordance with
the law laid down in Baldev Singh, nor can it be construed from its language.
[Reference may also be made to the decision of a two judge Bench of this Court
in Venkateswarlu]. Therefore, strict compliance with Section 50(1) by the
empowered officer is mandatory. Section 50, however, applies only in the case
of a search of a person. In Baldev Singh, the Court held “on its plain reading,
Section 50 would come into play only in the case of a search of a person as
distinguished from search of any premises, etc.” In State of Himachal Pradesh
v Pawan Kumar (“Pawan Kumar”),
11 a three judge Bench of this Court held
that the search of an article which was being carried by a person in his hand, or
on his shoulder or head, etc., would not attract Section 50. It was held thus:
“In common parlance it would be said that a person is carrying
a particular article, specifying the manner in which it was
carried like hand, shoulder, back or head, etc. Therefore, it is
not possible to include these articles within the ambit of the
word “person” occurring in Section 50 of the Act …After the
decision in Baldev Singh, this Court has consistently held that
Section 50 would only apply to search of a person and not to
any bag, article or container, etc. being carried by him.”
In Parmanand, on a search of the person of the respondent, no substance was
found. However, subsequently, opium was recovered from the bag of the
respondent. A two judge Bench of this Court considered whether compliance
11 (2005) 4 SCC 350.
14
with Section 50(1) was required. This Court held that the empowered officer
was required to comply with the requirements of Section 50(1) as the person of
the respondent was also searched. [Reference may also be made to the
decision of a two judge Bench of this Court in Dilip v State of Madhya
Pradesh]
12. It was held thus:
“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.”
Moreover, in the above case, the empowered officer at the time of conducting
the search informed the respondent that he could be searched before the
nearest Magistrate or before the nearest gazetted officer or before the
Superintendent, who was also a part of the raiding party. The Court held that
the search of the respondent was not in consonance with the requirements of
Section 50(1) as the empowered officer erred in giving the respondent an option
of being search before the Superintendent, who was not an independent officer.
It was held thus:
“We also notice that PW 10 SI Qureshi informed the
respondents that they could be searched before the nearest
Magistrate or before the 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 the nearest Magistrate or the 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
12 (2007) 1 SCC 450.
15
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.”
The question which arises before us is whether Section 50(1) was required to
be complied with when charas was recovered only from the bag of the appellant
and no charas was found on his person. Further, if the first question is answered
in the affirmative, whether the requirements of Section 50 were strictly complied
with by PW-2 and PW-4.
11 As evidenced by Exhibit-3, a first option was given to the appellant. PW2
informed him that it was his legal right to be searched either in the presence
of a magistrate or in the presence of a gazetted officer. The appellant was then
asked to give his option by indicating whether he wanted to be searched by a
magistrate or a gazetted officer. The appellant indicated that he wanted the
search to be carried out in the presence of a gazetted officer. When PW-4
arrived, he was introduced to the detainee as a gazetted officer. As evidenced
by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him
again, whether he wanted to be searched in the presence of a gazetted officer
or in the presence of a magistrate. The appellant reiterated his desire to be
16
searched in the presence of a gazetted officer. Before the search of the
appellant commenced, the gazetted officer asked the appellant whether he
wanted to search PW-2 before his own search was carried out by PW-2. The
appellant agreed to search PW-2 before the latter carried out his search. On
conducting the search, only personal belongings of PW-2 were found by the
appellant. On the search of the appellant in the presence of the gazetted officer,
a biscuit colour jute bag was recovered from the appellant, and Rs. 2,400/- cash
in the denomination of 24 notes of Rs. 100/- each was found in the left pocket
of the appellant’s trouser. When the bag was opened, a black polythene cover
containing nineteen rectangular broken sheets of a blackish / deep brown colour
weighing 1.5 kilograms was recovered. The sheets were tested and were found
to be charas.
PW-2 conducted a search of the bag of the appellant as well as of the
appellant’s trousers. Therefore, the search conducted by PW-2 was not only of
the bag which the appellant was carrying, but also of the appellant’s person.
Since the search of the person of the appellant was also involved, Section 50
would be attracted in this case. Accordingly, PW-2 was required to comply with
the requirements of Section 50(1). As soon as the search of a person takes
place, the requirement of mandatory compliance with Section 50 is attracted,
irrespective of whether contraband is recovered from the person of the detainee
or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal
right to be searched in the presence of either a gazetted officer or a magistrate.
17
From Exhibit-3, it can be discerned that the appellant was informed of his legal
right to be searched in the presence of a magistrate or a gazetted officer. The
appellant opted for the latter alternative. Exhibit-4 is a record of the events after
the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was
once again asked by him, whether he wished to be searched in the presence of
a gazetted officer or a magistrate. This was the second option which was
presented to him. When he reiterated his desire to be searched before a
gazetted officer, PW-4 inquired of the appellant whether he wished to search
PW-2 before his own search was conducted by PW-2. The appellant agreed to
search PW-2. Only the personal belongings of PW-2 were found by the
appellant. It was only after this that a search of the appellant was conducted
and charas recovered. Before the appellant’s search was conducted, both PW2
and PW-4 on different occasions apprised the appellant of his legal right to be
searched either in the presence of a gazetted officer or a magistrate. The
options given by both PW-2 and PW-4 were unambiguous. Merely because the
appellant was given an option of searching PW-2 before the latter conducted
his search, would not vitiate the search. In Parmanand, in addition to the option
of being searched by the gazetted officer or the magistrate, the detainee was
given a ‘third’ alternative by the empowered officer which was to be searched
by an officer who was a part of the raiding team. This was found to be contrary
to the intent of Section 50(1). The option given to the appellant of searching
PW-2 in the case at hand, before the latter searched the appellant, did not vitiate
the process in which a search of the appellant was conducted. The search of
18
the appellant was as a matter of fact conducted in the presence of PW-4, a
gazetted officer, in consonance with the voluntary communication made by the
appellant to both PW-2 and PW-4. There was strict compliance with the
requirements of Section 50(1) as stipulated by this Court in Vijaysinh.
12 As we have already held that Section 50 was attracted in the present
case, we do not need to decide on the applicability of Namdi to the facts of the
present case. We have held that Section 50 was complied with. Having regard
to the above position, we do not find any merit in the appeal.
13 The Criminal Appeal shall accordingly stand dismissed.
...………............................................CJI
[DIPAK MISRA]
...…….…...............................................J
[Dr Dhananjaya Y Chandrachud]
.….……….............................................J
[INDIRA BANERJEE]
New Delhi;
September 05, 2018.
