TMI Blog2004 (1) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... (Crl. Appeal No. 52 of 2003) questioning the acquittal of accused Mangi Lal and Nathu Singh, as directed by the Trial Court and upheld by the High Court. Initially, seven persons were treated to be accused persons. Four of them, namely, Shamshuddin, Smt. Krishan Kanwar, Mangi Lal and Nathu Singh were tried by District and Sessions Judge, Pratapgarh, who found accused Shamshuddin and Smt. Krishna Kanwar guilty of offences punishable under Sections 8 and 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act') and sentenced each to undergo rigorous imprisonment for 14 years and to pay a fine of ₹ 2 lakh with default stipulation. Nathu Singh and Mangi Lal (A-6 and A-7) respectively, were acquitted. Prosecution case as unfolded during trial is as follows: Prassan Kumar Khamesara (PW-16), Dy. S.P. Chhoti Sadri received information at about 8.30 p.m. on 5.7.1994 to the effect that on 6.7.1994 between 5.00 a.m. to 9.00 a.m., one Shamshuddin S/o Shakoor Khan, resident of Dharakhedi, shall be coming on a Rajdoot motorcycle, from Chittorgarh side and will be proceeding towards Udaipur, alongwith contraband heroin. The above information was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xb.P-33) and regarding ₹ 33,000/- which he earned by selling heroin and other household articles purchased from such earning. Thereafter, Shamshuddin took the police party to his house in village Batalganj (U.P.) and in the presence of Kanhaiya Lal and Magni Ram, attesting witnesses, ₹ 33,000/-, an FDR of ₹ 20,000/- dated 30th May, 1994 issued by SBBJ Branch, Chetak Circle, Udaipur were recovered. Other household articles and jewellery were also recovered vide Exb.P-5. Shamshuddin also disclosed that the contraband heroin so seized from both the accused was purchased from Mangi Lal and Nathu Singh. This led to arrest of both of these persons, and upon their disclosure statement, their houses were also searched on 6.7.1994 from 4.00 p.m. to 6.00 p.m. 27 gms. heroin was recovered from the house of Mangi Lal whereas 225 gms. heroin was recovered from house of Nathu Singh. Seizure memos Exb.P-1 and P-2 respectively were prepared. ₹ 41,980/- were recovered from the house of Nathu Singh. Other necessary memos were prepared. After completion of investigation, charge sheet was placed. Accused persons pleaded innocence and in order to substantiate their plea ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntire operation in the presence of Addl. S.P. Pratapgarh (PW-14). The S.P. was also present though he has not been examined as witness. The moment the information was received, there was communication to the higher authorities, and therefore, there is no violation of Section 42 as alleged. The requirements of Section 50 were complied with by intimating the accused of his option and choice and the existence of his right of being search by the police officer (PW-16) or by a gazetted officer. The accused opted to be searched by the police officer. So, there is no violation as alleged. So far as samples are concerned, the forensic laboratory report clearly indicates that the samples were received sealed and tags, seals were in tact and on analysis found to be heroin. It is seen that Exb.P-32 contains the secret information that was received by the Dy. S.P. (PW-16). Constable Indermal (PW-9) had categorically stated that he had taken the intimation to the S.P. and the Addl. S.P. The envelope was handed over to the S.P. at 9.00 p.m. and at 11.00 p.m. to the S.P. Pratapgarh and Chhoti Sadri. On the same day, at about 4.00 a.m. he returned to the police station. The Addl. S.P. has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity Force 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, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence 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) such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes to the basis of information i.e. (i) from personal knowledge (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. Sub-section (2) mandates as was noted in Baldev Singh's case (supra) 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. The Trial Court and the High Court after analyzing the evidence have come to hold that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conviction and sentence of the accused. Where the conviction has been recorded only on the basis of the possession of the illicit article, recovered during a search conducted in violation of the provisions of Section 50 of the Act, it was illegal. It was further held that the omission may not vitiate the trial as such, but because of the inherent prejudice which would be caused to an accused by the omission to be informed of the existence of his right, it would render his conviction and sentence unsustainable. In paragraph 32 of the judgment (at page 200) this position was highlighted. In para 57, inter alia, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eguards 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 conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in 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 requirements 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 strait-jacket formula. Section 50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The above position was elaborately dealt with in Prabha Shankar Dubey v. State of Madhya Pradesh (2003 AIR SCW 6592). A similar question was also examined in Madan Lal and Anr. v. State of Himahal Pradesh (2003 (6) Supreme 382). The quantity recovered by no stretch of imagination is small. Further, nothing could be shown as to how there was violation of Section 57 of the Act. The safe custody of seized articles and samples has been established by cogent evidence. Forensic Laboratory report shows that the samples were received in sealed conditions with seals and tags in tact. That being so, there is no infraction as alleged. When the factual position is tested on the legal principles indicated above, the inevitable conclusion is that the prosecution has established its case beyond a shadow of doubt and t ..... 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