TMI Blog2010 (10) TMI 934X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well. 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. Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. - CRIMINAL APPEAL NO. 943 OF 2005, 974 OF 2003 & 1809 OF 2009 - - - Dated:- 29-10-2010 - JAIN, D.K. , REDDY, B.SUDERSHAN SHARMA, MUKUNDAKAM LODHA, RAJENDRA MAL AND VERMA, DEEPAK, JJ. JUDGMENT D.K. JAIN, J.: 1. The short question arising for consideration in this batch of appeals is whether Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act ) casts a duty on the empowered officer to `inform' the suspect of his right to be searched in the presence of a Gazetted Officer or a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Act. In Krishan Kanwar (Smt.) Alias Thakuraeen Vs. State of Rajasthan, 2004(2) SCC p.608, the same question was considered and it was held that there is no specific form prescribed or initiated for conveying the information required to be given under Section 50 of the NDPS Act and it was held that what is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the court has to see the substance and not the form of intimation. Whether the requirement of Section 50 have been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or a straitjacket formula. Thus, in a way, it all depends on the oral evidence of the officer who conducts search, in case nothing is mentioned in the search mahazar or any other contemporaneous document prepared at the time of search. In view of the large number of cases coming up under the provisions of the NDPS Act the interpretation of Section 50 of the Act requires a little more clarification as its applicabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory power, by insisting on the strict observance of the procedure established under the said Section. According to the learned counsel, this safeguard is meant to ensure that the powers under the NDPS Act are not abused and a person is not falsely implicated and subjected to grave consequences which are likely to follow under the said Act. Relying on the decision of this Court in Beckodan Abdul Rahiman Vs. State of Kerala (2002) 4 SCC 229, learned counsel submitted that the harsh provisions of the NDPS Act cast a heavier duty upon the prosecution to strictly follow and comply with the safeguards. 7. Learned counsel thus, argued that the theory of `substantial compliance' cannot be applied to defeat, negate or neutralise important safeguards provided by the legislature. It was asserted that merely asking the suspect whether he would like to be produced before a Magistrate or a Gazetted Officer for the purpose of the search can never amount to due compliance with Section 50 of the NDPS Act. 8. Mr. Siddharth Luthra, learned senior counsel appearing on behalf of State of Gujarat, on the other hand, submitted that the rigours of Section 50 of the NDPS Act are neither applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arest Magistrate, whereupon such officer or Magistrate is duly empowered under Section 50(3), to either discharge the suspect from detention or direct that a search be made. In support of the proposition, reliance is placed on a decision of this Court in State of Rajasthan Vs. Ram Chandra (2005) 5 SCC 151. 10. Learned counsel also submitted that the decisions of this Court in State of Punjab Vs. Balbir Singh (1994) 3 SCC 299, Saiyad Mohd. Saiyad Umar Saiyad Ors. Vs. State of Gujarat (1995) 3 SCC 610, Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala (1994) 6 SCC 569 and affirmed in Baldev Singh (supra) have all read the phrase for making the search' into Section 50(1) of the NDPS Act, which has led to safeguards and protections to an accused person, as envisaged under Section 50 of the NDPS Act to be read down, making the said provision virtually ineffective and, therefore, the decision of this Court in Baldev Singh (supra) needs reconsideration. 11.Adopting the same line of arguments, Mr. P.P. Malhotra, the learned Additional Solicitor General, appearing on behalf of the Government of NCT of Delhi maintained that it is clear from language of Sections 41(2), 42 and 43 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that an offence under Chapter IV of the said Act has been committed. Under proviso to sub-section (1), 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 and send the same to his immediate official superior in terms of sub-section (2) of the Section. 14.Section 50 of the NDPS Act prescribes the conditions under which personal search of a person is required to be conducted. Being the pivotal provision, the Section, (as amended by Act 9 of 2001 - inserting sub-sections (5) and (6) with effect from 2nd October 2001) is extracted in full. It reads as under: 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 the nearest Gazetted Officer of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search to be made. 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. 16.At this juncture, we must state that the issue before us in terms of the referral order is not about the applicability of Section 50 of the NDPS Act per se but is confined to the scope and width of the expression if the person to be searched so requires as figuring in sub-section (1) of the said Section. Therefore, we deem it unnecessary to evaluate the submissions made by the learned counsel regarding the applicability of the rigours of Section 50 of the NDPS Act when a search of the suspect is conducted by an officer empowered under Section 41 of the said Act. We may, however, add that while considering the question of compliance with Section 50 of the NDPS Act, the Constitution Bench in Baldev Singh (supra) considered the provisions of Section 41 as well. It observed as under :- 8. Section 41 of the NDPS Act provides t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. xxxxxxxxxxxxxxxxxxxx (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the court on the basis of the evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50 and, particularly, the safeguards provided therein were duly complied with, it would not be permissible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article or document, he may proceed to search the person instead of taking him to the nearest gazetted officer or Magistrate. However, even in such cases a safeguard against any arbitrary use of power has been provided under sub-section (6). Under the said sub-section, the empowered officer is obliged to send a copy of the reasons, so recorded, to his immediate official superior within seventy two hours of the search. In our opinion, the insertion of these two sub-sections does not obliterates the mandate of sub-section (1) of Section 50 to inform the person, to be searched, of his right to be taken before a gazetted officer or a Magistrate. The object and the effect of insertion of sub-sections (5) and (6) were considered by a Constitution Bench of this Court, of which one of us (D.K. Jain, J.) was a member, in Karnail Singh Vs. State of Haryana (2009) 8 SCC 539. Although in the said decision the Court did observe that by virtue of insertion of sub-sections (5) and (6), the mandate given in Baldev Singh's case (supra) is diluted but the Court also opined that it cannot be said that by the said insertion, the protection or safeguards given to the suspect have been taken away comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows: What the officer concerned is required to do is to convey about the choice the accused has. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the officer concerned, even though there is no specific form. The use of the word right at relevant places in the decision of Baldev Singh case seems to be to lay effective emphasis that it is not by the grace of the officer the choice has to be given but more by way of a right in the suspect at that stage to be given such a choice and the inevitable consequences that have to follow by transgressing it. However, while gauging whether or not the stated requirements of Section 50 had been met on facts of that case, finding similarity in the nature of evidence on this aspect between the case at hand and Joseph Fernandez (supra), the Court chose to follow the views echoed in the latter case, wherein it was held that searching officer's information to the suspect to the effect that if you wish you may be searched in the presence of a gazetted officer or a Magistrate was in substantial compliance with the requirement of Section 50 of the NDPS Act. Nevertheless, the Court ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had 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 Section 50 gives 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. 23.Accordingly, we answer the reference in the manner aforesaid. The appeals shall, now, be placed before the appropriate Bench for dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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