REPORTABLE

               IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 1513   OF 2008 (Arising out of S.L.P. (Crl) No.4628/2007)

 Man Bahadur                  ...Appellant

Versus

 State of H.P.               ...Respondent   

          O  R  D  E  R

     Delay condoned.

             Leave granted.

    (1) One of the questions which arises for consideration in this appeal is as to

whether Shri Lal Chand No. 8 I.O. P.P.Pandoh(P.W.10) was bound to make the

accused-appellant aware that he had also a right to be searched before a Magistrate

or a gazetted Officer.

    (2) In State of Punjab Vs. Baldev Singh -(1999) 6 SCC 172, a Constitution

Bench of this Court has clearly held that the accused has a right to be made aware

thereof. Having regard to the Miranda clause as enunciated by the Supreme Court of

the United States of America in Miranda Vs. Arizona-384 US 436, the Constitution

Bench held that, although,such communication  itself   may  not   necessarily   be

made   

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in writing but as far as possible such communication should be made in the presence

of some independent and respectable persons witnessing the arrest and search.  

It was opined:

" 57 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 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 Magistrate would cause prejudice to an accused."

(3)   A three-Judge Bench of this Court in Vijaysinh Chandubha Jadeja Vs. State

of Gujarat - (2007) 1 SCC 433 noticed the aforementioned dicta laid  by the Constitution

Bench in Baldev Singh(Supra)  and  in no uncertain terms opined that the accused must be

told of his right to be searched before a gazetted officer or a Magistrate.  

(4) The Bench, however, was of the opinion that some more clarification

is necessary as to whether such communication of the right of the accused could be taken in

evidence by way of oral evidence of the officer concerned.

(5) In this case it is accepted at the Bar that the search memo or any other

document do not show that the appellant was made aware of his right to be searched before  a

gazetted officer or a Magistrate.  

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(6) From the deposition of P.W.10-I.O.P.P. Pandoh, it appears that he had

merely given an option to the appellant to be searched either by himself or in presence of a

Magistrate or  a gazetted Officer.  

(7) No  evidence  has  been  adduced  to  show  that  the  appellant  was

communicated of his right either to be searched in presence of  a Magistrate or a gazetted

officer on the one hand and by an empowered officer on the other.

(8) Recently, this Court in Noor Aga Vs. State of Punjab and Anr.-

2008(9)  SCALE  681,  categorically,  held  that  as  the  provisions  contained  in  the

N.D.P.S.Act  are  penal  in  nature,  all  requirements  laid  down  therein   must  be

complied with strictly, stating:

" 149.  Section 50 of the Act provides for an option to be given. This Court in Baldev Singh(supra) quoted with approval the decision of the Supreme Court of United States in Miranda Vs. Arizona [(1966) 384 US 436} in the following terms:      

" The Latin maxim salus populi suprema lex ( the safety of the people is the supreme law) and salus republicae suprema lex(safety of the State is the supreme law) coexist and are not only  important  and  relevant  but  lie  at  the  heart  of  the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be right, just and fair."

150. Justness and fairness of a trial is also implicit in Article 21 of the Constitution.

151. A fair trial is again a human right. Every action of the authorities under the Act must be construed having regard to the provisions of the Act as also the right of an accused to have a fair trial.

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152. The courts, in order to do justice between the parties, must examine the materials brought on record in each case on its own merits. Marshalling and appreciation of evidence must be done strictly in accordance with the well known legal  principles  governing  the  same;  wherefor  the  provisions  of  the  Code  of Criminal Procedure and Evidence Act must be followed.

153. Appreciation of evidence must be done on the basis of materials on record and not on the basis of some reports which have nothing to do with the occurrence in question.

154. Article 12 of the Universal Declaration of Human Rights provides for the Right to a fair trial. Such rights are enshrined in our Constitutional Scheme being Article 21 of the Constitution of India. If an accused has a right of fair trial, his case must be examined keeping in view the ordinary law of the land.

155. It is one thing to say that even applying the well known principles of law, they are found to be guilty of commission of offfences for which they are charged but it is another thing to say that although they cannot be held guilty on the basis of the materials on record, they must suffer punishment in view of the past experience of otherwise."

(8) In the instant case, there has been even no substantial compliance of

Section 50 of the N.D.P.S. Act.

(9) For the reasons aforementioned, the impugned judgment of conviction

and sentence cannot be upheld. It is set aside accordingly. The appeal is allowed.

(10) Appellant is in custody. He shall be released forthwith unless required in

connection with some other case.

......................J.       [S.B. SINHA]

.....................J                                       [ CYRIAC JOSEPH ]

New Delhi, September 23, 2008.

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