TMI Blog2015 (9) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... se also a notice was given to the appellant. - appellant was not made aware of his right and it seems that an offer was made to the petitioner as a mere empty formality without appreciating the seriousness and letter and spirit of Section 50 of NDPS Act. - Having held that the mandatory requirement of Section 50 of the NDPS Act was not complied with, recovery itself would be illegal and consequent thereto the conviction and the order on sentence are liable to be set aside - Decided in favour of appellant. - CRL.A. 174/2005 - - - Dated:- 3-12-2013 - MR. G.S.SISTANI, J. For the Appellant : Ms.Charu Verma, Adv. For the Respondent : Mr.Firoz Khan Ghazi, APP G.S.SISTANI, J. (Oral) Appellant has filed the present appeal under Section 36-B of the NDPS Act 1985 read with Section 374(2) of the Code of Criminal Procedure 1973 against the judgment and order on sentence by which the appellant stands convicted and sentenced to two years rigorous imprisonment and fine of ₹ 1000/- under Section 20 of the NDPS Act. Case of the prosecution as noticed by the learned Trial Court is as under:- (1) A secret information was received by SI K.L.Yadav which was recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been able to establish its case beyond any shadow of doubt. Notice under Section 50 of the NDPS Act was given to the appellant and the appellant had declined the offer given to him and he had put his thumb impression on the reply given by him to the notice. Ms.Verma submits that in fact the thumb impression of the appellant was taken on a blank piece of paper and suggestion was put to PW-8 in this regard during his cross-examination. It is no longer res integra that Section 50 of the NDPS Act is mandatory in nature and the same is to be applied strictly. In the case of State of Delhi v. Ram Avtar @ Rama reported at 2011 (7) SCALE 428 it has been categorically held as under:- In the present case, we are concerned with the provisions of Section 50 of the Act as it was, prior to amendments made by Amending Act 9 of 2001 w.e.f. 2.10.2001. In terms of the provisions, in force at the relevant time, the petitioner had a right to be informed of the choice available to him; making him aware of the existence of such a right was an obligation on the part of the searching officer. This duty cast upon the officer is imperative and failure to provide such an option, in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Singh @ Janta‟s case (supra), where a person was coming on a tractor loaded with three gunny bags, the police party became suspicious and checked the tractor-trolley and in the gunny bags poppy husk was recovered. In the aforesaid matter, a notice was given and search was conducted. However, the person in presence of whom search was conducted was in fact not a gazetted officer. Relevant portions (paragraphs) of the decision read as under:- 15. However, while analyzing the importance of Section 50 of the NDPS Act in that very decision, this Court has held as under in paragraph 20: 20. In Miranda v. Arizona the Court, considering the question whether the accused be apprised of his right not to answer and keep silent while being interrogated by the police, observed thus: At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it - the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch in the presence of a Gazetted officer or a Magistrate. When once P.W.6 could assimilate the said legal requirement as stipulated under Section 50 of the NDPS Act, we fail to understand as to how principle No.1 in paragraph 25 of the decision reported in Balbir Singh (supra) could be applied. Unfortunately, the trial Court failed to understand the said principle set out in Balbir Singh (supra) in the proper perspective while holding that neither Section 42 nor Section 50 was attracted to the facts of this case. xxxxx 22. In Pawan Kumar (supra) wherein the Constitution Bench decision was referred to and was reiterated as under in paragraph 26: 26. ..Otherwise, there would be no distinction between recovery of illicit drugs, etc. seized during a search conducted after following the provisions of Section 50 of the Act and a seizure made during a search conducted in breach of the provisions of Section 50. Having regard to the scheme and the language used a very strict view of Section 50 of the Act was taken and it was held 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... useful to reproduce the notice so issued to the appellant under Section 50 of the NDPS Act as also the reply of the appellant to the said notice: Notice u/s.50 NDPS Act You, Mantoon Kumar s/o. Chaturi Mandal r/o. Village Chuck, P.S. Chothan Distt. Khagaria Bihar, presently residing at Priya Darshni Jhuggi Colony, S.Bazar is hereby informed vide this notice that that police has an information that you are in possession of ganja (poppy husk) and a personal search has to be carried out on you and if you desire any gazetted officer or a Magistrate can be called on the spot, and before getting searched by police party, if you desire, you may search the police party. Reply to Notice u/S. 50 NDPS Act You have given me a written notice u/S. 50 of the NDPS Act which have been read over to me and made me to understand the same. I have understood the notice well. Neither do I want to call any gazetted officer or a magistrate during my search and nor do I want to search the police party before giving my search. You can conduct search on me. You have written my reply which I have heard and understood. A careful examination of this notice would show that an option was g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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