TMI Blog2017 (12) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... sed person about his statutory right to be searched before a Magistrate or Gazetted Officer. Facts of the case in hand is also similar to that decided by Hon”ble Apex Court in the case of Dilbag Singh v. State of Punjab [2016 (12) TMI 1 - SUPREME COURT] as in this case also recovery is from the car and not from the possession of the appellant and though person of the appellant was also searched but nothing except one mobile and some sim cards were recovered and as stated above, prosecution is also not relying upon the personal seizure of the appellant. The contention of appellant regarding non-compliance of Section 50(1) does not appear to be convincing and is certainly of no help, whereas, there are sufficient cogent, consistent and reliable materials available on record with regard to recovery of commercial quantity of ganja/psychotropic addictive substance from the dickey of the car - So far conviction of appellant under Section 476 of Indian Penal Code is concerned, the same appears to be not sustainable and is hereby set aside - appeal disposed off. - Criminal Appeal (DB) No. 530 of 2016 - - - Dated:- 18-12-2017 - Kishore Kumar Mandal And Vinod Kumar Sinha, JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emo (Ext. 7) was drawn by the informant in presence of the witnesses including P.W. 5. A copy was also given to the appellant and endorsement to this effect was obtained on the seizure memo. Thereafter, samples were drawn and sealed. 4. It has been argued with much vehement that as the raiding team had also searched the person of the appellant, it was incumbent on the prosecution to strictly comply with the provision of Section 50(1) of the Act. There is no evidence available on record that the appellant was even orally informed about his right of being searched of his person in presence of the Gazetted Officer or the Magistrate. On account of such breach of the provision of the Act, the prosecution is bound to fail. Reliance in this regard has been placed on the decision reported in AIR 2014 SC 1384, State of Rajasthan v. Parmanand and Anr. He also relied on the decision in the case of State of Punjab v. Baldev Singh reported in AIR 1999 Supreme Court 2378. 5. Counsel for the State combating the said submission of the defence has argued that the Magistrate (P.W. 5) was present with raiding team and in his presence the person of the appellant as well as the vehicle occupied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hostile as he did not support the prosecution case), P.W. 3- Ram Rahan Singh ( informant and S.I. of Kudra police) P.W. 4- Nutan Kumar, (driver of the vehicle and saif jawan as well as member of raiding team), P.W. 5 Md. Allaudin Ansari, ( the Circle Officer, Kudra) and P.W. 6 Rajiv Ranjan (Investigating Officer). 7. P.W. 3 is the informant in this case, according to his evidence, on 14.11.2014, he on getting an information that a car was coming with some contraband articles, he requested for deputation of a Magistrate. His evidence further shows that he along with other police party and Circle Officer, Kudra, intercepted the vehicle on the National Highway, near Kudra coming from Mohania and the driver and other person sitting in the car tried to escape but were caught and in presence of Circle Officer, car was searched, from which 25 polythene packets were recovered, which was ganja/Psychotropic addictive substance and total weight of the seized articles was 96 kilogram. Further from the car, four number plates of different numbers were also recovered. Apprehended person disclosed their name as Virendra Kumar Lohara (appellant) and Chottu Yadav. Thereafter, their persons w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticles were recovered. Thereafter the seized articles were weighed on electronic weighing machine, which revealed the total weight of seized article as 96 kgs. Thereafter, the packet was sealed, on which signatures of the witnesses were obtained and he also put his signature and identified his signature in the court. 10. P.W. 2 is the seizure list witness, though he has been declared hostile by prosecution and has been cross-examined on his previous statement before police but his evidence shows that he along with Vikash Kumar Gupta, went at the place of occurrence and saw a red colour Hyundai car standing there and he stated that car was searched. However, again he stated that search was not made there and the police took the car and the accused persons to police station and he was called at the police station, where dickey of the car was searched from which, 25 small packets containing ganja and four different number plates were recovered. As such even in spite of the fact that this witness has been declared hostile, he has admitted about the recovery of ganja from the dickey of the car and also about the arrest of accused persons, who were sitting in the car and attempted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the car, which was occupied by the appellant and a seizure list was prepared in presence of the Circle Officer (P.W. 5) and, thereafter, seized articles were produced before the Special Judge, who authorized a Magistrate for preparation of sample. Thereafter, sample was prepared on which, the signature of witness as well as accused persons has also been obtained, thereafter, seized articles were sealed in presence of the accused persons and the Magistrate. Evidence available on record also shows that samples were sent to FSL, Patna and CR CL, Kolkata and report submitted by F.S.L., Patna, (Ext. 9) clearly shows that it was ganja/psychotropic addictive substance. It further appears that during the trial, witnesses though are police witness but they have supported the prosecution case of recovery of ganja from the dickey of the car and also supported the prosecution that the appellant was arrested while trying to escape from the car. Hence, consistent evidence is available so far recovery of ganja/psychotropic addictive substance from dickey of car is concerned and further appellant and another accused person were arrested on the spot. It further appears that remaining of sample has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case. 55. On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person 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 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; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al norms were adopted only to balance an urgent situation. As a consequence the mandate given in Baldev Singh's case is diluted 19. Later on the said question again arose for consideration before the Constitution Bench of Hon ble Apex Court in the case of Vijaysinh Chandubha Jadeja vs. State of Gujarat reported in (2011) 1 PLJR 100 SC and the Hon ble Apex Court, considering all the cases including the case of Karnail Singh v. State of Haryana (supra) as well as the case of State of Punjab v. Baldev Singh (supra) and has come to following conclusion in para 22:- 22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant has come with an argument that in this case though ganja was not recovered from his person but as fact proved the person of the appellant was also searched, as such compliance of Section 50 of the Act was must in the facts and circumstances of the case. In support of his contention, he has relied upon a decision in the case of State of Rajasthan v. Parmanand and Anr. (supra), in which it has been held in para 12 to 14 as follows:- 12. Thus, if merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, in light of judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application. 13. It is now necessary to examine whether in this case, Section 50 of the NDPS Act is breached or not. The police witnesses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The search of the bag of respondent No.1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated. 22. In this case person of the appellant has also been searched but prosecution is relying on the search seizure of ganja/psychotropic addictive substance, which was made from the dickey of the car and not from the person of the appellant. In such a situation, a question arises as to whether in that case also conviction shall vitiate on the ground that the accused has not been informed of his right of being searched in presence of a Magistrate or a Gazetted Officer or he may be produced before a Magistrate or Gazetted Officer. No doubt, in the case of State of Rajasthan v. Parmanand and Anr. (supra), Hon ble Apex Court has observed that in that case also requirement of compliance of Section 50 is must, however, testing the aforesaid points from another angle, it appears from perusal of evidence the Circle Officer (P.W. 5), was present at the time of search and in his presence search and seizure was made and sei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 48 hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. As it is no longer res integra that the application of Section 50 of the Act is comprehended and called for only in the case of search of a person as distinguished from search of any premises etc. having been authoritatively propounded by the two Constitution Bench rulings of this Court in State of Punjab vs. Baldev Singh (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609, further dilation in this regard, in the attendant facts and circumstances of the case, is considered inessential. This is more so as the contraband in the case in hand had been recovered from inside the car in which the petitioner and the co-accused were travelling at the relevant point of time and not in course of the search of their person. Noticeably, it had also not been the plea of the defence ever that the alleged seizure according to the accused persons had been from their person. In the contextual facts therefore, Section 50 has no application to espouse the cause of the defence. 24. Facts of the case in hand is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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