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CASE NO.: Appeal (crl.)  1480 of 2004

PETITIONER: Dilip & Anr.                                                              

RESPONDENT: State of M.P.                                                    

DATE OF JUDGMENT: 24/11/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. Sinha, J.

       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  Sections 50 and 42 the NDPS Act were not complied with.  The seizure  witnesses did not support the prosecution case.  The informant also did not  comply with the requirements of Section 57 of the NDPS Act.  Sealing of  the contraband materials was not carried out in accordance with law as no  responsible officer fixed seal on the seized samples.   

       The State preferred an appeal before the High Court against the said  judgment of acquittal which was registered as Criminal Appeal No.524 of  1998.  The High Court reversed the said judgment of the learned Sessions  Judge holding :  

       (1) provisions contained in Section 57 of the NDPS Act are not  mandatory and there has been a substantial compliance of the said provision  as the informant Shri S.S. Tomar did not have any prior information;  

       (2) the question of obtaining any warrant from a Magistrate or a  Gazetted Officer under Section 41 did not arise;  

       (3)  he has also no opportunity to comply with Section 42 of the  NDPS Act.  The conduct of the appellants in speedily crossing the road  which aroused suspicion of police officers was enough to show that they had  knowledge that contraband was concealed in the scooter.   

       On the aforementioned findings they were sentenced to undergo  rigorous imprisonment for 10 years and pay a fine of Rs.1 lakh each, in  default of which they were directed to undergo rigorous imprisonment for a

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further period of 2 years each.                    The appellants are, thus, before us.

       It is now well settled that the offence committed under the Act is a  grave one.  Procedural safeguards provided therefor in terms of Sections 41,  42 and 50 of the NDPS Act should be complied with.

       We may notice Section 50 of the NDPS Act, which reads as under:                  "50. Conditions under which search of persons  shall be conducted.\026 (1) When any officer duly  authorised under section 42 is about to search any person  under the provisions of section 41, section 42 or section  43, he shall, if such person so requires, take such person  without unnecessary delay to the nearest Gazetted Officer  of any of the departments mentioned in section 42 or to  the nearest Magistrate. (2) If such requisition is made, the officer may  detain the person until he can bring him before the  Gazetted Officer or the Magistrate referred to in sub- section (1).  (3) The Gazetted Officer or the Magistrate before  whom any such person is brought shall, if 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 not supported the case of the prosecution at  all.  They were declared hostile.

       Having regard to the testimonies of the said witnesses, as also various  other circumstances as noticed in his judgment, the learned Sessions Judge  opined that the likelihood of S.S. Tomar having prior information about the  matter cannot be ruled out.  The learned Judge found that P.W.10 in his  cross-examination accepted that he entertained doubts that the accused had  been in possession of contraband and, therefore, he intended to comply with  the provisions of Section 50 of the NDPS Act.  The High Court, however,  without meeting the reasonings of the learned Sessions Judge proceeded to  take the prosecution case as gospel truth and opined that neither the  provisions of Section 50 of the NDPS Act nor Section 42 thereof were  required to be complied with.    

       The First Information Report did not contain any statement that the  provisions of Section 50 had been complied with.  But the prosecution  introduced two notices marked as Exhibits P10 and P11, which were said to

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have been issued to the accused informing them about their right to get  themselves searched either before S.D.O.P., a Magistrate or some gazetted  officer.  The learned Sessions Judge noticed that in the aforementioned two  documents there had been no mention of the fact that he had formed an  opinion that the scooter in question contained any contraband.  Furthermore,  in the aforementioned two purported notices time, date, name, residence and  age of the officer giving notice had not been disclosed.  It had furthermore  not been mentioned that the accused were informed of their legal right.  

       P.W.3 \026 Narendra Singh in his deposition before the Court  categorically stated that P.W.10 did not inform the accused about their legal  right in this behalf.  Who scribed the said documents was also in doubt, as  according to P.W.10 the same were recorded by P.W.8 \026 Arvind Sanger,  whereas the latter stated that it was P.W.10 \026 S.S. Tomar who scribed the  same.  P.W.8 has been examined under Section 161 of the Code of Criminal  Procedure, 1973.  His said statement was marked as Exhibit D2.  He did not  make any statement before the Investigating Officer as to who prepared the  notices.   

       Before seizure of the contraband from the scooter, personal search of  Appellants had been carried out and, admittedly, even at that time the  provisions of Section 50 of the 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 narcotic drug or  psychotropic substance then the police officer,  who is not empowered, should inform the  empowered officer who should thereafter proceed  in accordance with the provisions of the NDPS  Act. If he happens to be an empowered officer  also, then from that stage onwards, he should carry  out the investigation in accordance with the other  provisions of the NDPS Act.         (2-A) Under Section 41(1) only an  empowered Magistrate can issue warrant for the  arrest or for the search in respect of offences  punishable under Chapter IV of the Act etc. when  he has reason to believe that such offences have  been committed or such substances are kept or  concealed in any building, conveyance or place.  When such warrant for arrest or for search is  issued by a Magistrate who is not empowered, then  such search or arrest if carried out would be illegal.  Likewise only empowered officers or duly

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authorized officers as enumerated in Sections  41(2) and 42(1) can act under the provisions of the  NDPS Act. If such arrest or search is made under  the provisions of the NDPS Act by anyone other  than such officers, the same would be illegal.         (2-B) Under Section 41(2) only the  empowered officer can give the authorisation to  his subordinate officer to carry out the arrest of a  person or search as mentioned therein. If there is a  contravention, that would affect the prosecution  case and vitiate the conviction.         (2-C) Under Section 42(1) the empowered  officer if has a prior information given by any  person, that should necessarily be taken down in  writing. But if he has reason to believe from  personal knowledge that offences under Chapter  IV have been committed or materials which may  furnish evidence of commission of such offences  are concealed in any building etc. he may carry out  the arrest or search without a warrant between  sunrise and sunset and this provision does not  mandate that he should record his reasons of  belief. But under the proviso to Section 42(1) if  such officer has to carry out such search between  sunset and sunrise, he must record the grounds of  his belief.         To this extent these provisions are  mandatory and contravention of the same would  affect the prosecution case and vitiate the trial.         (3) Under Section 42(2) such empowered  officer who takes down any information in writing  or records the grounds under proviso to Section  42(1) should forthwith send a copy thereof to his  immediate official superior. If there is total non- compliance 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 officer while acting under  Sections 41(2) or 42 should comply with the  provisions of Section 50 before the search of the  person is made and such person should be  informed that if he so requires, he shall be  produced before a Gazetted Officer or a Magistrate  as provided thereunder. It is obligatory on the part

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of such officer to inform the person to be searched.  Failure to inform the person to be searched and if  such person so requires, failure to take him to the  Gazetted Officer or the Magistrate, would amount  to non-compliance of Section 50 which is  mandatory and thus it would affect the prosecution  case and vitiate the trial. After being so informed  whether such person opted for such a course or not  would be a question of fact.         (6) The provisions of Sections 52 and 57  which deal with the steps to be taken by the  officers after making arrest or seizure under  Sections 41 to 44 are by themselves not  mandatory. If there is non-compliance or if there  are lapses like delay etc. then the same has to be  examined to see whether any prejudice has been  caused to the accused and such failure will have a  bearing on the appreciation of evidence regarding  arrest or seizure as well as on merits of the case."

       This Court, therefore, clearly held as to what extent provisions of  Sections 41 and 42 are mandatory and to what extent they would not be.

       Indisputably, however, effect of a search carried out in violation of the  provisions of law would have a bearing on the credibility of the evidence of  the official witnesses, which would of course be considered on the facts and  circumstances of each case.

       In this case, the provisions of Section 50 might not have been required  to be complied with so far as the search of scooter is concerned, but, keeping  in view the fact that the persons of the appellants were also searched, it was  obligatory on the part of P.W.10 to comply with the said provisions.  It was  not done.

       In State of Punjab vs. Baldev Singh [(1999) 6 SCC 172], a  Constitution Bench of this Court opined :

"......Thus, while conducting search and seizure, in  addition to the safeguards provided under the Code of  Criminal Procedure, the safeguards provided under the  NDPS Act are also required to be followed. Section 50(4)  of the NDPS Act lays down that no female shall be  searched by anyone excepting a female. This provision is  similar to the one contained in Section 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."

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       Requirements of law in this case had been giving a complete go bye.   The prosecution story as to how the SHO found the appellants on the road  near the police station is also not free from doubt.   

       Unfortunately, the High Court did not meet the reasonings of the  learned Sessions Judge.  The findings of the learned Trial Judge that P.W.10  had prior information, had also not been met by the High Court.  The High  Court was dealing with a judgment of acquittal.  It was, therefore, bound to  show that the findings of the learned Sessions Judge were not legally  tenable.   

         It is well known that if two views are possible, benefit of doubt  should be given to the accused.    

       We may notice that a Three Judge Bench of this Court in Jagdish vs.  State of M.P. [(2003) 9 SCC 159], had set aside the judgment of conviction  where panch witnesses denied that search and seizure of the opium took  place in their presence.  {See also Ritesh Chakravarti vs. State of Madhya  Pradesh [2006 (9) SCALE 644].}

       The High Court, in our opinion, could not have brushed aside the  findings of the learned Sessions Judge without meeting the reasonings  assigned by it as it was dealing with a judgment of acquittal.  For the reasons  aforementioned, the impugned judgment cannot be sustained which is set  aside accordingly.                    The appeal is allowed.  Appellants are directed to be set at liberty  forthwith, unless wanted in connection with any other case.