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PETITIONER: SAIYAD MOHD.  SAIYAD UMAR SAIYED & ORS.

       Vs.

RESPONDENT: THE STATE OF GUJARAT.

DATE OF JUDGMENT03/04/1995

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) AHMADI A.M. (CJ) NANAVATI G.T. (J)

CITATION:  1995 SCC  (3) 610        JT 1995 (3)   489  1995 SCALE  (2)576

ACT:

HEADNOTE:

JUDGMENT: BHARUCHA,J: 1.   Special leave granted. 2.   The  appeal is directed against the judgment and  order of a Division Bench of the High Court of Gujarat.  The  High Court  upheld the conviction of the appellants for  offences punishable  under  Section  20 of  The  Narcotic  Drugs  and Psychotropic  Substances Act, 1985 (NDPS Act) and  the  pun- ishment imposed on each of them therefore, namely,  rigorous imprisonment for a term of ten years and fine of Rupees one, lakh;   in  default  of  payment  of  the   fine,   rigorous imprisonment  for  a further term of two years.   It  upheld also  the conviction of the appellants under the  provisions of  Sections 65 and 66 of the Bombay Prohibition Act,  1949, in respect whereof no Separate punishment had been imposed. 3.It  was the case of the prosecution that on 18th  October, 1986,   Police  Sub-Inspectors  Rathod  and  Rana   received information that the first appellant was doing the  business of  selling  ’charas’  in  Vagharivad,  opposite  Renbasera, Ahmedabad.  Along with other police personnel, PSIs and Rana raided the area.  Upon search 55 grams of ’charas’ was found from  the  first appellant and 10 grams from the  and  third appellants.  The appellants were 492 charge-sheeted, tried by the Additional City Sessions Judge, Ahmedabad, and convicted and sentenced as aforesaid. 4.It  was  contended by learned counsel  appearing  for  the appellants before the High Court that, under the  provisions of Section 50 of the NDPS Act, the appellants were  required to be informed of their right to be searched in the presence of  a  Gazetted  Officer  or Magistrate  and  there  was  no evidence  to show that PSI Rathod or PSI Rana  had  informed the  appellants  accordingly; there being a  breach  of  the provisions of Section 50, the appellants were entitled to an acquittal.  The learned Additional Public Prosecutor pointed

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out  to the High Court that this argument had not been  made before  the trial court and he submitted that a question  of fact could not be permitted to be raised for the first  time in appeal.  He also submitted that, by reason of Section  54 of  the NDPS Act, the burden was on the appellants to  prove that they had not committed offences under the NDPS Act  and this  they  had  failed  to  do.   In  the  alternative,  he submitted  that  the act of informing the accused  of  their right  to be searched in the presence of a Gazetted  Officer or  a  Magistrate under Section 50 of the NDPS  Act  was  an official  act  to be performed by a police officer  and  the High  Court should raise a presumption under the  provisions of Section 114, illustration (e) of the Indian Evidence Act, 1872, to that effect.  The High Court noted the judgment  of this  court in the case of State of Punjab v. Balbir  Singh, (1994) 3 S.C.C. 299, and observed that it was an  imperative requirement  that  a police officer intending  to  search  a person  for the possession of articles covered by  the  NDPS Act should inform him that he had a right to be searched, if he  so  chose, in the presence of a Gazetted  Officer  or  a Magistrate.  The High Court then stated :               "In  nutshell we may say that both PSI  Rathod               and  PSI Rana have stated each and  everything               in  their evidence regarding  the  information               received  by  them, calling  for  the  Panchas               going  to the place of offence, searching  the               accused  and  on search  finding  of  muddamal               "Charas" of 55 grams from accused No.1 and  10               grams each from accused Nos. 2 and 3. What  is               not  stated by them before the Court  is  that               they  had  informed the  accused  about  their               right  under section 50 of the NDPS Act to  be               searched in presence of a gazetted officer  or               a  magistrate.  in our  opinion,  Mr.  Shelat,               learned  Add.  P.P. was night in submitt  that               the  Court has to raise presumption  that  PSI               Rathod  and  PSI Rana must have  informed  the               accused  about  their  such  a  right  to   be               searched in presence of a gazetted officer  or               a  magistrate before the search as it  was  an               official act............ 5.   The High Court went on to state               "To  inform the accused about his right to  be               searched in presence of a gazetted officer  or               a magistrate under Section 50 of the NDPS  Act               is an official act.  Therefore, ordinarily  it               is  not deposed by police officer  before  the               Court  that he had informed the accused  about               his  right  to be searched in  presence  of  a               gazetted officer or a magistrate under section               50 of the DPS Act since is to be  presumed....               We may further say that in the case under  the               NDPS Act, it is the duty of the Court to raise               presumption   under  section  114(c)  of   the               Evidence  Act, if the police officer  has  not               deposed  in his evidence before the Court  and               if   the   Court  does  not   raise   such   a               presumption,  then it would be failing in  its               duty." 6.   Section 50(1) of the NDPS Act reads 493 thus :               "When   any  officer  duly  authorised   under               Section 42 is about to search any person under               the  provisions of Section 41, Section  42  or

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             Section  43,  he  shall,  if  such  person  so                             requires, take such person without  unnecessar y               delay  to the nearest Gazetted Officer of  any               of the departments mentioned in Section 42  or               to the nearest Magistrate." 7.This court in the case of Balbir (ibid) held:               "18...........  In the context in  which  this               right has been conferred, it must naturally be               presumed that it is imperative on the part  of               the  officer  to  inform  the  person  to   be               searched  of his right that if he so  requires               to be searched before a gazetted officer or  a               magistrate.  To us, it appears that this is  a               valuable  right  given  to the  person  to  be               searched in the presence of a gazetted officer               or a magistrate if he so requires, since  such               a  search would impart much more  authenticity               and creditworthiness to the proceedings  while               equally  providing an important  safeguard  to               the accused.  To afford such an opportunity to               the person to be searched, he must be aware of               his  right  and that can be done only  by  the               authorised   officer   informing   him.    The               language is clear and the provision implicitly               makes it obligatory on the authorised  officer               to  inform  the person to be searched  of  his               right...........               19.   Under the Act wide powers are  conferred               on  the officers and deterrent  sentences  arc               also provided for the offences under the  Act.               It  is  obvious  that  the  legislature  while               keeping  in  view the menace of  illicit  drug               trafficking  deemed  it  fit  to  provide  for               corresponding  safeguards to check the  misuse               of  power thus conferred so that any  harm  to               the   innocent  persons  is  avoided  and   to               minimise   the  allegations  of  planting   or               fabricating by the prosecution, Section 50  is               enacted.               22............... Therefore, it is to be taken               as  an imperative requirement on the  part  of               the officer intending to search to inform  the               person to be searched of his right that if  he               so  chooses,  he  will  be  searched  in   the               presence   of   a  gazetted   officer   or   a               magistrate.  Thus the provisions of Section 50               are mandatory. 8.   It  is to be noted that under the NDPS  Act  punishment for  contravention of its provisions can extend to  rigorous imprisonment  for  a term which shall not be  less  than  IO years  but  which May extend to 20 years and  also  to  fine which  shall not be less than Rupees one lakh but which  may extend  to Rupees two lakhs, and the court is  empowered  to impose  a fine exceeding Rupees two lakhs for reasons to  be recorded in its judgment.  Section 54 of the NDPS Act shifts the  onus  of  proving his innocence upon  the  accused;  it states that in trials under the NDPS Act it may be presumed, unless and until the contrary is Proved, that an accused has committed  an offence under it in respect of  the   articles covered  by  it  "for the possession of which  he  fails  to account   satisfactorily".   Having  regard  to  the   grave consequences  that may entail the possession of illicit  ar- ticles under the NDPS Act, namely, the shifting of the  onus to the accused and the severe punishment to which he becomes

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liable, the legislature has enacted the safeguard  contained in Section 50.  To obviate any doubt as to the possession by the  accused  of illicit articles under the  NDPS  Act,  the accused  is  authorised  to  require  the  search  for  such possession  to  be conducted in the presence of  a  Gazetted Officer or a Magistrate.  We endorse the find- 494 ing  in  Balbir  Singh’s case that the  provisions  in  this behalf  are mandatory and the language thereof  obliges  the officer concerned to inform the person to be searched of his right to demand that the search be conducted in the presence of a Gazetted Officer or a Magistrate. 9.   Having regard to the object for which the provisions of Section  50 have been introduced into the NDPS Act and  when the language thereof obliges the officer concerned to inform the person to be searched of his right to be searched in the presence of a Gazetted Officer or a Magistrate, there is  no room   for   drawing  a  presumption  under   Section   114, illustration  (e)  of  the Indian Evidence  Act,  1872.   By reason of Section 114 a court "may presume the existence  of any fact which it thinks likely to have happened, regard be- ing  had  to  the common course  of  natural  events,  human conduct  and public and private business, in their  relation to facts of the particular case." It may presume " (e)  that judicial  and official acts have been regularly  performed." There is no room for such presumption because the possession of   illicit  articles  under  the  NDPS  Act  has   to   be satisfactorily  established before the court.  The  fact  of seizure thereof after a search has to be proved.  When  evi- dence  of  the search is given all that  transpired  in  its connection must be stated.  Very relevant in this behalf  is the  testimony of the officer conducting the search that  he had informed the person to be searched that he was  entitled to demand that the search be carried out in the presence  of a  Gazetted Officer or a Magistrate and that the person  had not  chosen to so demand.  If no evidence to this effect  is given  the court must assume that the person to be  searched was not informed of the protection the law gave him and must find that the possession of illicit articles under the  NDPS Act was not established. 10.  We  are unable to share the High Court’s view  that  in cases  under  the NDPS Act it is the duty of  the  court  to raise  a  presumption, when the officer  concerned  has  not deposed  that  he  had followed the  procedure  mandated  by Section  50, that he had in fact done so.  When the  officer concerned has not deposed that he had followed the procedure mandated by Section 50, the court is duty bound to  conclude that  the accused had not had the benefit of the  protection that Section 50 affords; that, therefore, his possession  of articles  which  are  illicit  under the  NDPS  Act  is  not established;  that  the  pre-condition  for  his  having  to satisfactorily  accounted for such possession has  not  been met; and to acquit the accused. 11.  The  High Court relied upon the fact that the  argument that  Section  50 had been complied with had not  been  made before  the trial court and held that a point of fact  could not  be taken for the first time in appeal.  The  protection that  Section 50 given to those accused of being in  posses- sion  of illicit articles under the NDPS Act  is  sacrosanct and cannot be disregarded on the technicality that the point was not taken in the court of first instance. 12.  Finding a person to be in possession of articles  which are illicit under the provisions of NDPS Act has, as we have said, the consequence of requiring him to prove that he  was not  in contravention of its provisions and it  renders  him

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liable  to punishment which can extend to 20 years  rigorous imprisonment and a fine of Rupees two lakhs or more.  It  is necessary, there- 495 fore, that courts dealing with offences under then NDPS  Act should  be  very careful to see that it  is  established  to their satisfaction that the accused has been informed by the concerned  officer  that  he had a right  to  choose  to  be searched before a Gazetted Officer or a Magistrate.  It need hardly be emphasised that the accused must be made aware  of this  right or protection granted by the statute and  unless cogent  evidence is produced to show that he was made  aware of  such right or protection, there would be no question  of presuming that the requirements of Section 50 were  complied with.  Instructions in this behalf need to be issued so that investigation   officers  take  care  to  comply  with   the statutory requirement and drug peddlers do not go scot  free due to non-compliance thereof Such instructions would be  of great value in the effort to curb drug trafficking.  At  the same time, those accused of possessing drugs should, however heinous  their offence may appear to be, have the  safeguard that the law prescribes. 13.For  the  reasons  aforestated,  the  conviction  of  the appellants under the NDPS Act and the sentence imposed  upon them for the same must be set aside. 14.For the conviction of the appellants under the provisions of  the  Bombay Prohibition Act no separate  punishment  was awarded.   The High Court has not dealt with the  aspect  of these  offences.  We find that the panchas did  not  support the evidence of PSIs Rathod and Rana, which further  weakens the  case that ’charas’ was found in the possession  of  the appellants.  We cannot, therefore, sustain their  conviction under the Bombay Prohibition Act. 15.  The  appeal is allowed.  The judgment and  order  under appeal is set aside.  The accused ate acquitted and shall be discharged forthwith. 498