Dharam Pal v. State of Punjab

CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-1-INoTHEoHIGHoCOURToOFoPUNJABoANDoHARYANAoAT CHANDIGARH ooo oooooCRA-S-2475-SB-2009o(O&M)ooo DateoofoDecision:ooo15.02.2025 DHARAMoPALo ...oAppellant Versus STATEoOFoPUNJAB ...Respondent CORAM:o HON'BLEoMR.oJUSTICEooJASJIToSINGHoBEDI Present: Ms.oPromilaoNain,oLegaloAidoCounselowitho Mr.oHarveenoMehta,oAdvocateo forotheoappellant.o Mr.oHarkanwaroJeetoSingh,oAsstt.oA.G.,oPunjab. **** JASJIToSINGHoBEDI,oJ. Theopresentoappealohasobeenofiledoagainstotheojudgmentoof convictionoandoorderoofosentenceodatedo06.10.2009opassedobyotheoJudge, SpecialoCourt,oBarnala.

¶2The o FIR o was o registered o on o 21.11.2008, o the o judgment o of convictionoandoorderoofosentenceopassedobyotheoJudge,oSpecialoCourt,oBarnala isodatedo06.10.2009,otheoappealowasofiledoono14.10.2009oandotheomatterois beingotakenoupoforohearingonowoi.e.oafteroaoperiodoofomoreothano16oyearsofrom theodateooforegistrationoofotheoFIR.

3.o Theo briefo facts, o as o per o the o report o u/s o 173 o Cr.P.C o that oon

21.11.2008,oASIoBaljitoSinghoalongowithohisopoliceoparty,oinoconnectionowith patrollingodutyoandocheckingoofobadoelements,owasoproceedingofromomainoroad Barnala,otowardsoMansaoDhaula.oWhenotheopoliceopartyowasoaolittleoshortoof CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-2-theoT-pointoChhanna,oatoabouto6.30oAM,oonotheorightosideounderotheoshadeoofoa Boharotreeonearotheowaterotap,ooneopersonowasoseenoconsumingosomething fromohisoleftohandowithohisorightohand.oOnoseeingotheopoliceoparty,oheoatoonce hadokeptothatothingoinotheopocketoandostartedodrinkingowater.oOnosuspicion, ASIoBaljitoSinghostoppedotheovehicleoandowithotheohelpoofohisocompanions, apprehendedotheosaidoperson,owhooonoenquiry,odisclosedohisonameoaso'Dharam Pal'oandoalsoodisclosedohisootheroparticulars.oASIoBaljitoSingh,olookedoforoa private o person o nearby, o but o none o was o available. o HC o Sabir o Mohd. o was despatchedotoobringosomeoindependentowitness.oThenoASIoBaljitoSingh disclosedohisoidentityoandoalsoodisclosedohisopresentoplaceoofoposting.oHeoalso statedotootheoaccusedothatoheosuspectingohimotoobeocarryingosomeoillegal substanceoandothatoheointendsotooconductohisosearch.oHeoalsooapprisedothe accusedoofohisorightotoogetotheosearchoconductedoinotheopresenceoofosome GazettedoOfficerooroMagistrate,owhoocouldobeocalledotootheospot.oHowever,othe accusedoreposedoconfidenceoinoASIoBaljitoSinghoandoexpressedohisodesireoto getotheosearchoconductedofromoASIoBaljitoSingh,owhereuponoaoconsentomemo wasoseparatelyorecorded.oMeanwhile,oHCoSabiroMohd.oalsooreturnedoand disclosedoaboutotheonon-availabilityoofoanyoindependentowitness.

¶4Thereafter,oASIoBaljitoSingh,oconductedotheosearchoofoDharam Pal,owhicholedotootheorecoveryoofoopiumowrappedoinoaoglazedopaperofromothe pocketoofotheoshirt,owhichotheoaccusedowasowearing.oASIoBaljitoSingh separatedotwoosamplesoofo10ogmoeachofromotheoopiumosoorecoveredoandothe residueoopiumoweighedo130ogm.oParcelsoofotheosamplesoandotheoresidueowere CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-3-prepared,owhichowereosealedowithotheosealobearingoimpressionso"BS".oThe sampleosealowasoseparatelyoprepared.oTheosealoafterouseowasohandedooveroto HCoRanjitoSingh.oAllotheothreeoparcelsoandosampleosealowereotakenointo possessionovideoaoseparateorecoveryomemo.oVariousootherodocumentsowere preparedoatotheospot.oOnoreturnotootheopoliceoStation,otheoaccusedoandotheocase propertyowereoproducedobeforeotheoSHO,owhoocounterosealedotheoparcelsoand theosampleosealowithohisosealobearingoimpressionso"HS".oTheosampleoparcel wasosentotootheoofficeoofotheoChemicaloExamineroandotheolatterovideohisoreport, opinedothatotheocontentsoofotheoparcelowereoopium.oOnocompletionoofothe investigation,otheoaccusedowasosentoupotoofaceotrialoforotheocommissionoofoan offenceounderoSectiono18oofotheoNDPS,oAct,o1985.oAccordingly,ochargesowere framedoagainstotheoappellantounderoSectiono18oofotheoNDPSoAct,o1985.oThe accusedopleadedonotoguiltyoandoclaimedotrial.

5.o Theoprosecutionoexaminedo05oprosecutionowitnessesobesides adducingodocumentaryoevidence.

6.o Onoclosureoofotheoprosecutionoevidence,oallotheoincriminating circumstancesoappearingoinotheoprosecutionoevidenceowereoputotootheoaccused inohisostatementou/so313oCr.P.C.oTheoaccusedodeniedoallotheoallegations, pleadedoinnocenceoandoclaimedofalseoimplication.oHowever,oheodidonotolead anyoevidenceoinodefence.

¶7ASI o Baljit o Singh o who o was o the o Investigating o Officer o was examined o as o PW-1. o He o deposed o about o the o mode o and o manner o of o the interceptionoofotheoaccusedoduringotheocourseoofopatrollingoduty.oHeodeposed CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-4-aboutohavingodisclosedohisoidentityotootheoaccusedoandothereafteroextendingothe optionoquaosearchobeforeotheoGazettedoOfficerooroMagistrateotootheoaccused. Howeverowhenotheoaccusedoreposedoconfidenceoinohim,ohisoconsentomemo Ex.PAowasorecorded.oHeodeposedoaboutoconductingoofoaosearchoofotheoaccused whicholedotootheorecoveryoofotheoopiumowrappedoinoaoglazedopaper.oHe deposedoaboutoseparationoofosamplesoandopreparationoofoparcelsoofothe samplesoandotheoresidueoandoalsoodeposedoaboutopreparationoofoaosampleoseal, whichowereotakenointoopossessionovideorecoveryomemooEx.PB.oHeodeposed aboutopreparationoofovariousodocumentsoatotheospot,osuchoasopersonalosearch memooEx.PC,oruqaoEx.PD,oonotheobasisowhereofotheoformaloFIRoEx.PD/1owas recorded,ositeoplanoEx.PE,omemooofoarrestoEx.PFoandointimationomemo Ex.PG.oHeodeposedothatoonoreturnotootheoPoliceoStation,oheoproducedothe accusedotogetherowithotheocaseopropertyobeforeoSHO/Insp.oHarpaloSingh,owho verifiedotheofactooforecoveryoandothenocounterosealedotheoparcelsoandothe sampleosealowithohisosealobearingoimpressionso"HS".oHeoalsoodeposedoabout theopreparationoofotheoreportounderoSectiono57oofoNDPSoAct,o1985owhichowas ExPHoandotheoendorsementoofotheoDSPoonotheosameoEx.PH/1.ooHeodeposed thatoonotheodayooforecoveryoitself,oheoproducedotheoaccusedoandotheocase propertyobeforeotheoMagistrate. PW2-HCoRanjitoSingh,owhoowasoaccompanyingotheoInvestigating Officeroonotheodayooforecoveryoalsoodeposedoaboutotheomodeoandomanneroof theoapprehensionoofotheoaccusedoandorecoveryoofoopiumofromohisopossession. Heofurtherodeposedoaboutotheoseparationoofotheosamplesoandopreparationoofothe CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-5-parcelsoofotheosamplesoandotheoresidue.oHeodeposedoaboutopreparationoof variousodocumentsorelatingotootheorecoveryoinotheopresentocaseowhichowere signedobyohimoasoanoattestingowitness.oHisostatementowasoinoverbatimowithothe statementoofotheoInvestigatingoOfficer. PW3-HCoGurtejoandoPW4-HCoSukhdevoSinghotenderedointo evidenceotheiroaffidavitsoEx.PJoandoEx.PKowithoregardotootheosafeocustodyoof theocaseopropertyoinotheoMalkhanaoandosafeoconveyanceoofotheosampleoparcel tootheoofficeoofotheoChemicaloExaminer. PW5-InspoHarpaloSinghodeposedoaboutotheoproductionoofothe accusedoalongowithoparcels,osampleosealoandotheowitnessesobeforeohimoon returnotootheoPoliceoStation,obyoASIoBaljitoSingh.oHeoverifiedotheofactoof recoveryoandocounter-sealingoofotheoparcelsoasowelloasosampleosealowithohis sealobearingoimpressiono"HS"oandothereafterogettingodepositedotheocase propertyowithoMHCoGurtejoSingh.o ReportoofotheoChemicaloExamineroisoEx.PI.

¶8Basedoonotheoevidenceoled,otheoaccused/appellantocameotoobe convictedoandosentencedobyotheoCourtoofoJudge,oSpecialoCourt,oBarnalaovide judgmentoandoorderoofosentenceodatedo06.10.2009oasounder:- Offence o under SentenceoRI/SI Fine RI/SIoinodefault Section of o payment o of fine 18oNDPSoAct,o1985 RIoforo06omonthso Rs.250/-o RIoforo15odays

¶9Itoisotheoaforementionedojudgment,owhichoisounderochallenge,oin CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-6-

¶10TheolearnedoLegaloAidoCounseloforotheoappellantocontendsothatono independentowitnessowasoexaminedowhichocreatesoaodoubtoinotheoprosecution case.oThereoisoaoviolationoofoSectiono50oofotheoNDPSoActoinasmuchoasothough anooptionowasogivenotootheoappellantothatoheocouldobeosearchedoinotheopresence ofoaoGazettedoOfficerooroMagistrate,ohisoconsentowasorecordedotootheoeffect thatoheowasoreadyoandowillingotoogetohimselfosearchoinotheopresenceoofothe InvestigatingoOfficer,oASIoBaljitoSinghowhoocarriedooutotheosearchoandoseizure. RelianceoisoplacedoonotheojudgmentsoinotheocasesoofoVijaysinhoChandubha JadejaoVs.oStateoofoGujarat,o2011(1)oSCCo609, oStateoofoRajasthanoVs. Po armanando&oanother,o2014(2)oRCRo(Criminal)o40ooandoArifoKhano@oAgha KhanoVs.oStateoofoUttarakhand,o2018(2)oRCRo(Criminal)o931.She,othus contendsotheoimpugnedojudgmentowasoliableotoobeosetoaside.

¶11Onotheootherohand,otheolearnedoStateocounselocontendsothatomere absence o of o independent o witnesses o would o not o falsify o the o case o of o the prosecutionoasothereowasonooreasonoforotheoofficialowitnessesotoodeposeofalsely againstotheoappellant.oFurther,oitowasotheoaccusedohimselfowhoohadoreposed faithoinotheoInvestigatingoOfficeroregardingohisosearchobeingoconductedoand therefore,oitocouldonotobeosaidotoobeoaocaseowhereotheoprovisionsoofoSectiono50 ofotheoNDPSoActohadobeenoviolated.o

¶12Iohaveoheardotheolearnedocounseloforotheoparties.

¶13Beforeoproceedingofurtheroinotheomatter,oitowouldobeoappositeoto referotootheoprovisionsoofoSectiono50oofotheoNDPSoAct,o1985oandotheosame readsoasounder:-CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-7--0.oConditionsoundero.hi/hosear/hoofotiersonsosha$$obeo/ondu/ted.-

(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 the 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 Gazette 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 section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6)oAfter 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." )2. &heovariouso#udgmentsoreliedoupono$,otheoappellantoareoasounder:8 /noVijaysinhoChandubhaoJadejaoFsupraG,oitowasoheldoasounder:8 CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-8-C22. In view of the foregoing discussion,owe are of the firm opinion thatothe object with which right under Sectiono50(1) of the Narcotic Drugs and Psychotropic Substances 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.oWe have no hesitationoin holding that in so far as the obligation of the authorised officer under sub-section (1) of Sectiono50oof the Narcotic Drugs and Psychotropic Substances Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed inoRe Presidential Poll, (1974)2 SCC 33, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole."oWe are of the opinion thatothe concept of "substantial compliance" with the requirement of Sectiono50oof the Narcotic Drugs and Psychotropic Substances Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Sectiono50onor it is in consonance with the dictum laid down in CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-9-Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Sectiono50ohad been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Sectiono50ogives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well." FemphasisosuppliedG /noStateoofoRajasthanoFsupraG,oitowasoheldoasounder:8 "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 CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-10-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 sectiono50oof the NDPS Act. They were told that under sectiono50(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 Sectiono8oread with sectiono18oof the NDPS Act and respondent No. 2 Surajmal was charged for offence under Sectiono8oread with Sectiono18oand for offence under Sectiono8oread with sectiono29oof 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 CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-11-

¶3Learned Special Judge convicted respondent No. 1 Parmanand under Sectiono8oread with sectiono18oof the NDPS Act and respondent No. 2 Surajmal under Sectiono8oread with sectiono28oof the NDPS Act. They were sentenced for 10 years rigorous imprisonment each and a fine ofoLo10 lakhs each. In default of payment of fine, they were sentenced to undergo rigorous imprisonment for two years.

¶4Aggrieved 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.

¶5Mr. 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 sectiono50oof the NDPS Act. Counsel submitted that PW-10 SI Qureshi has clearly stated that the respondents were communicated their right under sectiono50(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.

¶6Ms. Nidhi, learned counsel for the respondents, on the other hand, submitted that admittedly notice under sectiono50oof 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 inoParamjit Singh and Anr. v. State of Punjab, 1997(1) RCR (Criminal) 293 : 1997(1) CRIMES 242oand judgment of the Bombay High Court inoDharamveer Lekhram CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-12-Sharma and Another v. The State of Maharashtra and Ors., 2001(2) RCR (Criminal) 788: 2001(1) CRIMES 586.oCounsel submitted that search was a farce. The High Court has, therefore, rightly acquitted the respondents.

¶7The question is whether sectiono50oof 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 sectiono50oof 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. **** ***** ****

¶12Thus, if merely a bag carried by a person is searched without there being any search of his person, sectiono50oof the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, sectiono50oof the NDPS Act will have application. In this case, respondent No. 1 Parmanand's bag CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-13-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, sectiono50oof the NDPS Act will have application.

¶13It is now necessary to examine whether in this case, sectiono50oof 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 sectiono50(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.oIn our opinion, aojoint communication of the right available under sectiono50(1) of the NDPS Act to the accused would frustrate the very purport of Sectiono50. 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 CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-14-may create confusion. It may result in diluting the right.oWe are, therefore, of the view thatothe accused must be individually informed that under sectiono50(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 sectiono50(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 authorised respondent No. 2 Surajmal to sign on his behalf and convey his consent. Therefore,oin our opinion, theoright 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.

¶15We 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,oin our opinion, isoagain a breach of sectiono50(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-CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-15-5 J.S. Negi cannot be called an independent officer.oWe are not expressing any opinion onothe 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 sectiono50(1) of the NDPS Act does not provide for it and when such option would frustrate the provisions of sectiono50(1) of the NDPS Act. On this ground also,oin our opinion, theosearch conducted by PW-10 SI Qureshi is vitiated.oWe have, therefore, no hesitationoin concluding that breach of sectiono50(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. Appeal dismissed." (Emphasisosupplied) /no%rifo&hano'o%(hao&hanoFsupraG,oitowasoheldoasounder:8 "7. Thereafter, the accused was asked by the police personnel of raiding party as to whether he is in possession of contraband "Charas". The accused admitted that he is in possession of "Charas". On apprehending the accused, he was informed by the police personnel that he has a legal right to be searched in the presence of a Gazetted Officer or a Magistrate to which the accused replied that he has a faith on the raiding police party and consented to be searched by them.

¶8The raiding police party accordingly obtained his consent in writing to be searched by the raiding police party. The raiding police party then searched the accused which resulted in seizure of "Charas" weighing around 2.5 K.G. in quantity from his body. **** **** **** CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-16-

¶14Learned counsel contended that the prosecution has failed to ensure mandatory compliance of Sectiono50oof the NDPS Act inasmuch as the alleged recovery/search of the contraband (Charas) made by the raiding police party from the appellant's body was not done in accordance with the procedure prescribed under Sectiono50oof the NDPS Act which according to learned counsel is mandatory as held by this Court in the case ofoVijaysinh Chandubha Jadeja v. State of Gujarat, 2010(4) RCR (Criminal) 911 : 2011(1) SCC 609.

¶15Learned counsel urged that the search/recovery of the alleged contraband from the appellant ought to have been made only in the presence of either a Magistrate or a Gazetted Officer only.

¶16It was urged that since admittedly the prosecution did not make the search/recovery from the appellant in the presence of a Magistrate or a Gazetted Officer and, therefore, the alleged recovery of the contraband "Charas" from the appellant is rendered illegal being in contravention of requirements of Sectiono50oof the NDPS Act thereby entitling the appellant for an acquittal from the charges. **** **** ****

18.oHavingoheard the learned counselofor the partiesoand on perusal of the record of the case, we are inclined to allow the appeal and while setting aside of the impugned judgment acquit the appellant from the charges in question.

19.oThe short question which arises for considerationoin the appeal is whether the search/recovery made by the police officials from the appellant (accused) of the alleged contraband (charas) can be held to be in accordance with the procedure prescribed under Sectiono50oof the NDPS Act.

¶20In other words,othe question that arises for considerationoin this appeal is whether theoprosecution was able to proveothat the CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-17-procedure prescribed under Sectiono50oof the NDPS Act was followed by the Police Officials in letter and spirit while making the search and recovery of the contraband "Charas" from the appellant (accused). **** **** **** ****

25.oIn our considered view, theoevidence adduced by the prosecution neither suggested and nor proved that the search and the recovery was made from the appellant in the presence of either a Magistrate or a Gazetted Officer.

¶26It is the case of the prosecution and which found acceptance by the two Courts below that since the appellant (accused) was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer but despite telling him about his legal right available to him under Sectiono50oin relation to the search, the appellant (accused) gave his consent in writing to be searched by the police officials (raiding party), the two Courts below came to a conclusion that the requirements of Sectiono50ostood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act.

27.oWe do not agree to thisofinding of the two Courts below as,oin our opinion, aosearch and recovery made from the appellant of the alleged contraband "Charas" does not satisfy the mandatory requirements of Sectiono50oas held by this Court in the case of Vijaysinh Chandubha Jadeja (supra). This we say for the following reasons.

¶28First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or Gazetted Officer; Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "Charas" was not made from the appellant in the CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-18-presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband "Charas" from him, was the Gazetted Officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband "Charas" as provided under Sectiono50oof the NDPS Act except in the presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Sectiono50oof the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a Gazetted Officer.

¶29Though, the prosecution examined as many as five police officials (PW-1 to PW-5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a Gazetted Officer.

¶30For the aforementioned reasons,owe are of the considered opinionothatotheoprosecution was not able to proveothat the search and recovery of the contraband (Charas) made from the appellant was in accordance with the procedure prescribed under Sectiono50oof the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Sectiono50oof the NDPS Act is fatal to the prosecution case and, in this case, we have found that theoprosecution has failed to proveothe compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal." (emphasisosupplied) CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-19-

¶15AoperusaloofotheolawoasolaidodownobyotheoHon'bleoSupremeoCourt inotheoaforesaidojudgmentsoisothatotheoprovisionsoofoSectiono50oofotheoNDPS Actoareomandatoryoandorequireostrictocomplianceoandofailureotoocomplyowith theoprovisionsowouldorenderotheorecoveryoofotheoillicitoarticleosuspectoand vitiateotheoconviction,oifotheosameoisorecordedoonlyoonotheobasisoofotheorecovery ofotheoillicitoarticleofromotheopersonoofotheoaccusedoduringosuchosearch. Further,oinoorderotooimpartoauthenticityoandotransparency,oatotheofirstoinstance, itoshouldobeotheoendeavouroofoaopoliceopartyotooproduceotheosuspectobeforeothe nearest o Magistrate o who o enjoys o more o confidence o of o the o common o man comparedotooanyootheroofficer.oFurther,owhereoanoofferoisogivenotooanoaccused thatoheocouldobeosearchedoinotheopresenceoofoaoGazettedoOfficer,oMagistrateoor byoaomemberoofotheoPoliceopartyowhooisonotoGazettedoOfficeroandotheopolice partyoitselfoisonotoaccompaniedobyoaoGazettedoOfficerobutotheoaccused expressesohisowillingnessotoobeosearchedobyotheoraidingopartyoreposingofaithoon theoraidingopoliceopartyoandoconsentsotoobeosearchedobyothem,oevenothen,othe offerowouldobeoviolativeoofoSectiono50oofotheoNDPSoActoinasmuchoasoitoisoa legaloimperativeothatotheosearchoisocarriedooutoinotheopresenceoofoaoGazetted OfficerooroMagistrateoonlyoandotheoquestionoofogivingoaothirdooptionoofoa searchobeingoconductedobyoaomemberoofotheopoliceopartyodoesonotoarise.oStill further,owhereoonlyotwoooptionsoareogivenoinotheocomplianceoofoSectiono50oof theoNDPSoActobutotheoaccusedovoluntarilyoexpressesohisowillingnessotoobe searchedobyoaomemberoofotheoraidingopartyononeoofowhomoareoGazetted Officersoandotheosearchoisocarriedooutobyosuchounauthorisedoofficer,othisosearch CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-20-andoseizure,oifoanyowouldobeoinoviolationoofoSectiono50oofotheoActoandothe judgmentsoofotheoHon'bleoSupremeoCourto(supra).

¶16Comingobackotootheofactsoofotheoinstantocase,oapparently,othe searchocouldohaveobeenoconductedoonlyobeforeoaoGazettedoOfficerooroa Magistrate.oTheoquestionoofoaothirdooptionobeingogivenoororecordingoof concessionoofotheoaccusedothatoheowasoreadyoforoaosearchotoobeoconductedoby theopoliceopartyowhichodidonotocompriseoofoaoGazettedoOfficerooroMagistrate doesonotoarise.oIfosuchoaoconcessionoofoanoaccusedowasorecordedoandoamounted toodueocomplianceoofoSectiono50oofotheoNDPSoAct,othenoanoaccusedoinocustody andounderoduressowouldoeasilyosuccumbotoopoliceopressureoandoconsentoforoa searchotoobeoconductedobyotheopoliceopartyoarrestingohim.oThis,omostoessential andovitalosafeguardowouldobeorenderedonugatory.

¶17Therefore,othisoCourtohasonoohesitationotooholdothatothereomustobe strictocomplianceoofoSectiono50oofotheoNDPSoActoandotheosearchoofoaoperson mustobeoconductedoinotheopresenceoofoaoGazettedoOfficerooroMagistrateoonly evenoifowhileoexercisingohisooption,otheoaccusedostatesothatoheowishesotoobe searchedobyoaomemberoofotheopoliceopartyononeoofowhomoareoGazetted Officers.

¶18Inoviewoofotheoaforementionedodiscussion,oquiteoapparently,othere is o a o violation o of o Section o 50 o of o the o NDPS o Act o inasmuch o as o the accused/appellantoconsentedotoobeosearchedobyoASIoBaljitoSingho(PW1)owho wasonotoaoGazettedoOfficer,otheosearchowasoconductedobyoPW1oandotheoalleged recoveryoofo150ogmoofoopiumoeffectedopursuantotootheosaidoillegalosearch. CRA-S-2475-SB-2009o(O&M)ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo-21-

¶19Therefore,otheoimpugnedojudgmentodatedo06.10.2009opassedoby theoJudge,oSpecialoCourt,oBarnalaoisosetoasideoandotheoappellantoisoacquittedoof theochargesoframedoagainstohim. (JASJIToSINGHoBEDI) ooooJUDGE

15.02.2025 JITESHo Whetherospeaking/reasoned:-ooYes/No Whetheroreportable:- oooooooooYes/No