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TMI Blog2003 (12) TMI 589X X X X Extracts X X X X X X X X Extracts X X X X ..... pprised through the notices Ex.P-10 and Ex.P-11 that if they so desire, can be taken to a Magistrate or a gazetted officer for search. They opted to be searched by him. On their search 200 grams of opium was found on the "person" of each of them. It was seized as per seizure memos Ex.P-4 and Ex.P-6. Samples of 10 grams each were taken and sealed. The seized opium in sealed condition was deposited in Malkhana of the police station. The crime was registered as per Ex.P-12. The information relating to search and arrest of the accused persons was sent to the superior officer on 5.11.1998 as per Ex.P-2. The sealed samples were sent to the Forensic Science Laboratory and as per report Ex.P-14, the commodity which was seized was found to be opium. The accused persons pleaded not guilty. Their defence was that they have been falsely implicated. The trial Court held that the testimony of the investigating officer to be reliable and unbreakably supported by the Onkar Singh Kushwaha (PW-1) and Rajindra Singh Yadav (PW-3)-Police Constable, who accompanied him though the two panch witnesses Ramesh (PW-4) and Yakoob Khan (PW-5) did not support the prosecution version. The trial Court held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nducted in the presence of the named officers to the exclusion of the officer making the offer for the search if accused so chose. According to learned counsel, before the Constitution Bench in Baldev Singh's case (supra) the form of information/intimation aspect was not under consideration. In order to appreciate rival submissions, some of the observations made by the Constitution Bench in Baldev Singh's case (supra) are required to be noted. It is also to be noted that the Court did not in the abstract decide whether Section 50 was directory or mandatory in nature. It was held that the provisions to the Act implicitly make it imperative and obligatory and cast a duty on the investigating officer (empowered officer) to ensure that search of the person (suspect) concerned is conducted in the manner prescribed by Section 50 by intimating to the person concerned about the existence of his right that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate would cause prejudice to the accused and render the recovery of the illicit articles suspect and vitiate the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish, 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 and 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 of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search." It is not disputed that there is no specific form prescribed or intended for con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate, depending upon who is conveniently available. 11. The option under Section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word 'nearest' in Section 50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior officer, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer or Magistrate". As has been highlighted in Baldev Singh's case (supra) it has to be seen and gauzed whether the requirements of Section 50 have been met. Section 50 in reality provides for additional safeguards which are not specifically provided by the statute. The stress is on the adoption of a reasonable, fair and just procedure. No specific words are necessary to be used to convey existence of the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case is almost a replica of what was said in that case. Though there cannot be any quarrel with the general principle highlighted by learned counsel for the appellants that if a thing is required to be done in a particular way it should be done in that way, the position here is different in view of our conclusions that the requirements of Section 50 of the Act were sufficiently complied with. The general principle as noted has been stated illuminatingly in Nazir Ahmad v. King-Emperor (AIR 1936 P.C. 253), and later by this Court in State of Uttar Pradesh v. Singhara Singh and Ors. (1964 (4) SCR 485). What the concerned officer is required to do is to convey about the choice the accused had. The accused (suspect) has to be told in a way that he becomes aware that the choice is his and not of the concerned officer, even though there is no specific form. The use of the word 'right' at relevant places in the decision of Baldev Singh's case (supra) 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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