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PETITIONER: AHMED

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       25/08/2000

BENCH: G.B.Pattanaik, U.C.Banerjee

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     PATTANAIK,J.

     Leave granted.

     The  appellant  was  tried by the  learned  Additional Sessions  Judge,  Mahsana in the State of Gujarat,  for  the offence  under  Section  20-B(2) of the Narcotic  Drugs  and Psychotropic  Substances Act, 1985 (hereinafter referred  to as  the Act) , as he was found in possession of 9 gms.  of Charas on 10.5.1992, which he was selling outside his house. The  learned Addl.  Sessions Judge, on consideration of  the prosecution   evidence,   came  to   the   conclusion   that prosecution  has  been able to establish  beyond  reasonable doubt  that Charas was found from the pocket of the  trouser of  the  accused, which weigh about 9 gms.  and as such  the accused  must  be held to have committed the  offence  under Section  20 B(2) of the Act.  He accordingly, convicted  the accused  of  the said offence and sentenced him  to  undergo rigorous  imprisonment for 10 years and a fine of rupees one lakh.  On appeal by the accused, the High Court affirmed the conviction and sentence and hence the present appeal.

     The prosecution case in nutshell is that on receipt of certain  information  that  the   accused  is  dealing  with narcotics,  the empowered officer called the panch witnesses and  raided the house of the accused.  While the accused was sitting on a cot, the person of the accused was searched and from his pant pocket, 9 gms.  of Charas was recovered, which later  on was established as Charas.  The factum of recovery of  Charas  from  the  pant of the  accused  is  established through the panch witness PW1 and the seizure list Exh.6 and Exh.17  but  the  said  witness  PW1  in  cross-examination, candidly  stated that the accused himself had requested  for being  taken  to the Magistrate for being searched  but  the Police  had  declared that it was not necessary.   PW2,  the senior Police Officer, also was examined in this case and he gave  out the details about the raid and seizure as well  as drawing  of the Panchnama.  In assailing the conviction, the learned  counsel  for  the   appellant  contended  that  the mandatory  requirements  of Section 50 of the NDPS Act  have not  been complied with inasmuch as notwithstanding the fact that  the  accused himself requested for being taken to  the Magistrate  for  the purpose of search, the Police  did  not accede  to  the same and, therefore, the conviction is  null

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and void.

     The  learned counsel appearing for the respondent,  on the  other  hand  contended that in the case  in  hand,  the search  itself having been made by a Gazetted Officer namely PW2,  it cannot be said that there has been an infraction of Section 50 of the Act, and, therefore, the conviction cannot be  held  to  be invalid.  The question  for  consideration, therefore,  is  whether when a search is made by a  gazetted officer,  is it obligatory for the prosecution to inform the accused  of  his  right  to be searched  before  a  gazetted officer or before a Magistrate, as provided under Section 50 of  the  Act?   According  to the learned  counsel  for  the respondent,  it  is  only  when  a  search  is  made  by  an authorised  officer  under Section 41(2) of the Act,  it  is only then, the provisions of Section 50 can be attracted but when  a search is made by an officer of gazetted rank of the department  of  Central  Excise,   who  is  empowered  under sub-section(2) of Section 41, then the provisions of Section 50  are  not  required  to be  complied  with  inasmuch  the empowered  officer himself is a gazetted officer.  According to  the  learned counsel for the accused appellant,  however the  provisions  of Section 50 are required to  be  complied with  irrespective  of the fact whether the search is  being made  by the empowered officer, who may be an officer of the gazetted  rank  or  by  an officer duly  authorised  by  the empowered  officer  under Section 42 of the Act.  To  ensure fairness  in the search itself and for compliance of Section 50  of  the Act, no differentiation can be made whether  the search is being made by the empowered officer, who obviously is  an officer of a gazetted rank or the authorised officer, who  may  be  a subordinate officer to  whom  the  empowered officer authorises.  To appreciate the point in issue, it is necessary  to extract the provisions of Sections 41, 42  and 50 of the Act:-

     Section   41.    Power   to    issue   warrant    and authorisation.   (1)  A  Metropolitan   Magistrate   or   a Magistrate  of  the  first class or any  Magistrate  of  the second  class specially empowered by the State Government in this  behalf,  may  issue a warrant for the  arrest  of  any person  whom he has reason to believe to have committed  any offence  punishable  under  Chapter IV, or for  the  search, whether  by day or by night, of any building, conveyance  or place in which he has reason to believe 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.

     (2)  Any  such  officer  of   gazetted  rank  of   the departments  of central excise, narcotics, customs,  revenue intelligence   or  any  other   department  of  the  Central Government  or of the Border Security Force as is  empowered in  this  behalf by general or special order by the  Central Government,  or  any  such  officer 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 in writing that any person has committed an offence  punishable  under Chapter IV or that  any  narcotic drug,  or  psychotropic  substance in respect of  which  any offence  punishable  under Chapter IV has been committed  or any  document or other article which may furnish evidence of

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the commission of such offence has been kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy, or a  constable, to arrest such a person or search a  building, conveyance  or  place whether by day or by night or  himself arrest a person or search a building, conveyance or place.

     (3)  The officer to whom a warrant under sub-  section (1)  is addressed and the officer who authorised the  arrest or  search  or  the  officer  who  is  so  authorised  under sub-section(2)  shall  have  all the powers  of  an  officer acting under section 42.

     Section  42.   Power  of entry,  search,  seizure  and arrest  without  warrant  or authorisation:-  (1)  Any  such officer  (being an officer superior in rank to a peon, sepoy or   constable)  of  the   departments  of  central  excise, narcotics,  customs,  revenue  intelligence   or  any  other department  of  the  Central  Government or  of  the  Border Security  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) seize 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 which he has reason to believe  may  furnish  evidence  of the  commission  of  any offence punishable under Chapter IV relating to such drug or substance;   and  (d) detain and search, and, if  he  thinks proper,  arrest any person whom he has reason to believe  to have  committed  any  offence punishable  under  Chapter  IV relating  to such drug or substance:  Provided that if  such officer  has  reason  to believe that a  search  warrant  or authorisation   cannot   be   obtained   without   affording opportunity  for the concealment of evidence or facility for the  escape  of  an offender, he may enter and  search  such building,  conveyance or enclosed place at any time  between sun  set  and  sun rise after recording the grounds  of  his belief.

     (2)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.

     Section  50.  Conditions under which search of persons shall be conducted(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

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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.

     An analysis of the aforesaid provisions, unequivocally indicate that under sub-section(2) of Section 41, an officer of  a  gazetted  rank of the department of  Central  Excise, narcotics,  customs,  revenue  intelligence   or  any  other department  of the Central Government or the Border Security Force, can be empowered by a general or special order by the Central  Government, conferring the power to arrest a person or  search a building, conveyance or place, if he has reason to  believe from personal knowledge or information that  the person  concerned has committed an offence punishable  under Chapter  IV  or  that  any  narcotic  drug  or  psychotropic substance,  in respect of which any offence punishable under Chapter  IV,  has  been committed or any document  or  other article which may furnish evidence of the commission of such offence,  has  been  kept  or  concealed  in  any  building, conveyance  or place.  Sub-section(2) of Section 41  further enables  the State Government to empower any officer of  the gazetted  rank of the revenue, drug control, excise,  police or  any  other department by a general or special  order  to perform  the  said  function.   The  said  sub-section  also confers   power  on  such   empowered  gazetted  officer  to authorise  any  officer, subordinate to him but superior  in rank  to  a peon, sepoy or a constable to perform  the  said function,  for  which  the  general  or  special  order  has empowered  him.   Section 42 is the power of entry,  search, seizure  and  arrest without any warrant  or  authorisation. Section  50,  which is supposed to be the minimum  safeguard afforded to an accused, provides that when a search is about to  be  made of a person under Section 41 or Section  42  or Section  43,  and if the person so requires, then  the  said person  of whom, search is about to be made has to be  taken to  the  nearest gazetted officer of any of the  departments mentioned  in Section 42 or to the nearest Magistrate.   The argument  of the learned counsel for the respondent is based upon  the  expression used in Section 50 to the effect  any person  duly authorised under Section 42 and, therefore,  a distinction is sought to be made in case of a search between an  empowered  officer  and a search made by  an  authorised officer.   But the said argument is devoid of any substance, since  Section 42 itself also speaks of search to be made by an officer, as is empowered by a general or special order by the  Central  Government or as is empowered by a general  or special  order by the State Government.  A combined  reading of the provisions of Section 42 and Section 50 would make it crystal clear that whenever a search of a person is about to be  made  on the basis of personal knowledge or  information received  in that behalf, then if the person to be  searched requires  to  be taken to a gazetted officer or the  nearest Magistrate,  the  same must be complied with and failure  to

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compliance of the same would constitute an infraction of the requirements  of  the provision of Section 50,  which  would ultimately  vitiate  the  conviction.  For  the  purpose  of complying   with   the   provisions  of   Section   50,   no differentiation  can  be  made  on a plain  reading  of  the language  used in Section 50, depending upon the officer who is  going to search the person concerned.  In our considered opinion,  since  the search is about to be effected  on  the basis  of any prior information or personal knowledge, which the  person going to search has the reasons to believe  that an  offence  under the Act is being committed, then for  the sanctity of the search itself, the person to be searched has been  afforded  the  minimum  right to  be  searched  before another  gazetted  officer or the Magistrate and that  right cannot  be  taken away, merely because the officer going  to search  happens  to  be  a gazetted officer,  who  has  been empowered  either by the Central Government or by the  State Government  by  a  general or special order.   In  fact  the legislature  has enacted the safeguard contained in  Section 50  to  obviate any doubt of the illicit articles under  the Act  and  this provision was engrafted having regard to  the grave consequences that may entail the possession of illicit articles  under  the NDPS Act, namely, the shifting  of  the onus  to  the accused and the severe punishment to which  he becomes  liable.   It  is in this connection,  it  would  be appropriate  to  extract  the observations made by  a  Three Judge  Bench  of  this  Court in the case  of  Saiyad  Mohd. Saiyad  Umar Saiyad and Ors.  Vs.  State of Gujarat, 1995(3) SCC Page 610:

     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  10 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 providing 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 articles  under  the NDPS Act, namely, the shifting  of  the onus  to  the accused and the severe punishment to which  he becomes  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 finding in Balbir  Singh  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.

     In  the  aforesaid judgment, not only the decision  of this  Court  in Balbir Singhs case to the effect  that  the provisions  of  Section 50 are mandatory, has been  endorsed but  also, it further indicates that it obliges the  officer concerned  to inform the person to be searched of his  right

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to  demand that the search be conducted in the presence of a Gazetted  Officer or a Magistrate.  In the case in hand, the evidence of PW1 indicates that even though the obligation of the  officer had not been discharged by way of informing the accused  of his right to demand that the search be conducted in  the  presence of a gazetted officer or a Magistrate  but the  accused  himself wanted to be searched  before  another gazetted  officer  or a Magistrate but that was not  acceded to.  It is not necessary to notice several decisions of this Court,  holding the provisions of Section 50 to be mandatory and  we would notice the recent Constitution Bench  decision on  the  point.  In the case of State of Punjab vs.   Baldev Singh,  1999(6)  SCC, 172, this question was considered  and answered  by the Constitution Bench by holding that it is an obligation  of  the  empowered officer and his  duty  before conducting  the  search of the person of a suspect,  on  the basis  of  prior information, to inform the suspect that  he has  the right to require his search being conducted in  the presence  of  a  gazetted officer or a  Magistrate  and  the failure  to so inform the suspect of his right would  render the  search illegal because the suspect would not be able to avail  of the protection which is inbuilt in Section 50.  It was  further held that if the person concerned requires,  on being  so  informed by the empowered officer  or  otherwise, that  his search be conducted in the presence of a  gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would cause prejudice to  the  accused and also render the search illegal and  the conviction  and  sentence  of the accused  based  solely  on recovery  made  during that search bad.  This Court  further held  that  bearing  in  mind  the  purpose  for  which  the safeguard  has been made, it is held that the provisions  of Section  50  of  the Act 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  article 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.  In paragraph 57 of the judgment  in Baldev Singhs case, the Constitution Bench held as follows:

     (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 person  concerned  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 person concerned 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,

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failure to conduct his search before a gazetted officer or a Magistrate,  may not vitiate the trial but would render  the recovery  of  the  illicit article suspect and  vitiate  the conviction  and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit  article, recovered from his person, during a search conducted  in  violation of the provisions of Section 50  of the Act.

     In   view   of  the   aforesaid  conclusions  of   the Constitution  Bench,  the submission of Mr.   M.N.   Shroff, appearing  for the State-respondent, that the requirement of compliance  of  Section  50 will not arise, if a  search  is going  to be made by an empowered officer, who happens to be a  gazetted officer, is devoid of any substance inasmuch  as this  Court  in  no uncertain terms has held  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 person concerned  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.  In view of the aforesaid position of law and  in  view of the evidence of PW1., as indicated  in  the earlier  part  of this judgment, the accused himself  having wanted  to  be  searched  before a  gazetted  officer  or  a Magistrate  and the same having been denied, there cannot be any  doubt  that failure on the part of the  prosecution  in complying  with  the provisions of Section 50,  renders  the recovery  of  illicit  article   suspect  and  vitiates  the conviction and sentence of the accused, since the conviction in  the  case  in  hand  is  based  solely  on  the  alleged possession  of Charas, which was recovered from his  person, during  a search conducted in violation of the provisions of Section  50 of the Act.  In the aforesaid circumstances, the conviction  and sentence is set aside and the accused be set at  liberty  forthwith, unless required in any  other  case. Fine  amount,  if  has  been paid, may be  refunded  to  the accused.  Criminal Appeal is accordingly allowed.