TMI Blog2006 (11) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sinha Markandey Katju, JJ. JUDGMENT Appellant was prosecuted for commission of an offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 ( the NDPS Act , for short) on the basis of a First Information Report lodged by one Shri S.S. Tomar, the Officer in-charge of P.S. Kumbhraj alleging that while he was posted as S.H.O. at the said police station, on 24.12.1996 when he came out of the gate for arresting one Shivraj Meena, he found two persons coming out at a fast speed in a scooter. They were stopped. They disclosed their names as Dilip Singh (Appellant) and Ramsharan. A search of their person was conducted. Nothing was found, but, on search of the scooter, some black coloured liquid substance contained in six big plastic bags and one small plastic bag were seen, which were said to be containing opium. Allegedly, the S.D.O.P. of the place Raghogarh, named, Shri G.S. Jadon was informed and 5 kgs. 890 gms opium was recovered. They were arrested at the spot. Learned Sessions Judge, Guna recorded a judgment of acquittal, inter alia, holding that the search and seizure was vitiated in law as mandatory statutory requirements contained in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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. The witnesses of the seizure were : P.W.1 - a sweeper engaged in the police station and P.W.2 - a cycle mechanic who was carrying on his business in front of the police station. They were examined before the learned Trial Judge. They have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, although required in law, had not been complied with. P.W.10 did not offer any satisfactory explanation as to on what basis the notices were purported to have been served. Ms. Vibha Datta Makhija, learned Counsel appearing on behalf of the State, however, would support the judgment of the High Court contending that this Court in State of Punjab vs. Balbir Singh [(1994) 3 SCC 299] categorically held that an illegal search may not have any direct impact on the prosecution case. This Court therein opined as under : The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows : (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of to his immediate official superior. If there is total noncompliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case. (4-A) If a police officer, even if he happens to be an empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity. (4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case. (5) On prior information the empowered officer or authorised off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the investigating officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. Requirements of law in this case had been giving a complete go bye. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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