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CASE NO.: Appeal (crl.)  634 of 2003 Appeal (crl.)  1122 of 2003

PETITIONER: Prabha Shankar Dubey                                     

RESPONDENT: State of Madhya Pradesh                                          

DATE OF JUDGMENT: 02/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       These two appeals relate to the common judgment rendered by a  learned Single Judge of the Madhya Pradesh High Court at Jabalpur Bench  upholding conviction of the appellants (hereinafter referred to as the  accused by their respective names) for commission of offence punishable  under Section 18 of the Narcotic Drugs and Psychotropic Substances Act,  1985 (hereinafter referred to as the ’Act’). In addition to custodial  sentence of 10 years, a fine of Rs.1,00,000/- was imposed.  

Prosecution version as unfolded during trial is as under:         On 3.11.1998 S.B. Shrivastava (PW-6) received information that two  persons in possession of opium were going on scooter No.M.P.-04-R-7693  from the side of new jail to Gandhi Nagar. This information was recorded  at Serial No.216 in Roznamcha and transmitted to the C.S.P. as per Ex.P- 1. The accused persons were stopped and apprised through the notices  Ex.P-10 and Ex.P-11 that if they so desire, can be taken to a Magistrate  or a gazetted officer for search. They opted to be searched by him. On  their search 200 grams of opium was found on the "person" of each of  them. It was seized as per seizure memos Ex.P-4 and Ex.P-6. Samples of  10 grams each were taken and sealed. The seized opium in sealed  condition was deposited in Malkhana of the police station. The crime was  registered as per Ex.P-12. The information relating to search and arrest  of the accused persons was sent to the superior officer on 5.11.1998 as  per Ex.P-2. The sealed samples were sent to the Forensic Science  Laboratory and as per report Ex.P-14, the commodity which was seized was  found to be opium. The accused persons pleaded not guilty. Their defence  was that they have been falsely implicated.  

       The trial Court held that the testimony of the investigating  officer to be reliable and unbreakably supported by the Onkar Singh  Kushwaha (PW-1) and Rajindra Singh Yadav (PW-3)-Police Constable, who  accompanied him though the two panch witnesses Ramesh (PW-4) and Yakoob  Khan (PW-5) did not support the prosecution version. The trial Court  held that there was full compliance with the statutory requirements  contained in Sections 42, 50, 55 and 57 of the Act and, therefore,  convicted and sentenced the appellants as afore-noted. Appeals before  the High Court as indicated at the threshold did not bring any relief to  the accused-appellants.   

       In support of the appeals, learned counsel appearing for the

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accused-appellants mainly focused on alleged non-compliance with the  requirements of Section 50 of the Act. According to them, mere asking  the accused as to whether they would like to be searched by the Gazetted  Officer or the Magistrate is not sufficient compliance of the  requirements embodied in Section 50 of the Act. By merely asking them  what is to be done is seeking their opinion and not making them aware of  their right. Great emphasis is laid on certain observations made by a  Constitution Bench in State of Punjab v. Baldev Singh (1999 (6) SCC  172). With reference to the questions that were formulated for  determination in Baldev Singh’s case (supra), it was submitted that the  sanctity that is attached to the compliance with the requirements has to  be culled out from references made to the principles under the  Preventive Detention Laws, The Fifth Amendment to the American  Constitution and the imperative and obligatory nature of the duty as  indicated in D.K. Basu v. State of West Bengal (1997 (1) SCC 416). The  Act provides stringent measures attached for infraction. That itself  brings in the necessity to ensure strict compliance with the  requirements. What has been done in the instant case is not in any way  compliance with the requirements as there was no specific information  given about the right. It is pointed out that in some cases, this Court  has said that substantial compliance would be sufficient which is  against the settled position in law that in respect of penal statutes  substantial compliance will not be sufficient.  

       In response, learned counsel for the State submitted that the  purpose of informing the accused is to ensure that there is transparency  and is aimed at ruling out allegations of false implication. There is no  specific manner in which the information/intimation is required to be  given. The accused did not opt to be searched by the Gazetted Officer or  the Magistrate even though it was pointed out to him that he had the  choice. It was not as if he had limited option. The search could be  conducted in the presence of the named officers to the exclusion of the  officer making the offer for the search if accused so chose. According  to learned counsel, before the Constitution Bench in Baldev Singh’s case  (supra) the form of information/intimation aspect was not under  consideration.  

       In order to appreciate rival submissions, some of the observations  made by the Constitution Bench in Baldev Singh’s case (supra) are  required to be noted. It is also to be noted that the Court did not in  the abstract decide whether Section 50 was directory or mandatory in  nature. It was held that the provisions to 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 articles 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, it was illegal. It was further held that the  omission may not vitiate the trial as such, but because of the inherent  prejudice which would be caused to an accused by the omission to be  informed of the existence of his right, it would render his conviction  and sentence unsustainable.     In paragraph 32 of the judgment (at page  200) this position was highlighted. In para 57, inter alia the following  conclusions were arrived at:

       "(1)    That when an empowered officer or a duly  authorized 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-

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section (1) of Section  50 of the Act of being taken  to the nearest gazetted officer or 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, 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.  

       (5)     That whether or not the safeguards  provided in Section 50 have been duly observed would  have to be determined by the court on the basis of  the evidence led at the trial. Finding on that issue,  one way or the other would be relevant for recording  an order of conviction or acquittal. Without giving  an opportunity to the prosecution to establish, at  the trial, that the provisions of Section 50 and,  particularly, the safeguards provided therein were  duly complied with, it would not be permissible to  cut short a criminal trial.          (6)     That in the context in which the  protection has been incorporated in Section 50 for  the benefit of the person intended to be searched, we  do not express any opinion whether the provisions of  Section 50 are mandatory or directory, but hold that  failure to inform the person concerned of his right  as emanating from sub-section (1) of Section 50 and  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."  

       It is not disputed that there is no specific form prescribed or  intended for conveying the information required to be given under  Section 50. What is necessary is that the accused (suspect) should be  made aware of the existence of his right to be searched in presence of  one of the officers named in the Section itself. Since no specific mode  or manner is prescribed or intended, the Court has to see the substance  and not the form of intimation. Whether the requirements of Section 50  have been met is a question which is to be decided on the facts of each

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case and there cannot be any sweeping generalization and/or strait- jacket formula.  

       Section 50 does not involve any self-incrimination. It is only a  procedure required to protect the rights of an accused (suspect) being  made aware of the existence of his right to be searched if so required  by him before any of the specified officers. The object seems to be to  ensure that at a later stage the accused (suspect) does not take a plea  that the articles were planted on him or that those were not recovered  from him. To put it differently, fair play and transparency in the  process of search has been given the primacy. In Raghbir Singh v. State  of Haryana (1996 (2) SCC 201), the true essence of Section 50 was  highlighted in the following manner:

       "8. The very question that is referred to us came to  be considered by a Bench of two learned Judges on  22.1.1996 in Manohar Lal v. State of Rajasthan  (Crl.M.P.No.138/96 in SLP(Crl.)No.184/1996). One of us  (Verma, J), speaking for the Bench, held:

       "It is clear from Section 50 of  the NDPS Act that the option given  thereby to the accused is only to choose  whether he would like to be searched by  the officer making the search or in the  presence of the nearest available  Gazetted Officer or the nearest  available Magistrate. The choice of the  nearest Gazetted Officer or the nearest  Magistrate has to be exercised by the  officer making the search and not by the  accused".

9.     We concur with the view taken in Manohar Lal’s  case supra.  

10.     Finding a person to be in possession of  articles which are illicit under the provisions of  the Act has the consequence of requiring him to prove  that he was not in contravention of its provisions  and it renders him liable to severe punishment. It  is, therefore, that the Act affords the person to be  searched a safeguard. He may require the search to be  conducted in the presence of a senior officer. The  senior officer may be a Gazetted Officer or a  Magistrate, depending upon who is conveniently  available.  

11.     The option under Section 50 of the Act, as it  plainly reads, is only of being searched in the  presence of such senior officer. There is no further  option of being searched in the presence of either a  Gazetted Officer or of being searched in the presence  of a Magistrate. The use of the word ’nearest’ in  Section 50 is relevant. The search has to be  conducted at the earliest and, once the person to be  searched opts to be searched in the presence of such  senior officer, it is for the police officer who is  to conduct the search to conduct it in the presence  of whoever is the most conveniently available,  Gazetted Officer or Magistrate".

       As has been highlighted in Baldev Singh’s case (supra) it has to  be seen and gauzed whether the requirements of Section 50 have been met.

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Section 50 in reality provides for additional safeguards which are not  specifically provided by the statute. The stress is on the adoption of a  reasonable, fair and just procedure. No specific words are necessary to  be used to convey existence of the right. In the case at hand the  information was conveyed in the following manner:

       "By way of this notice you are informed that we  have received information that you are illegally  carrying opium with you, therefore, we are required  to search your scooter and you for this purpose. You  would like to give me search or you would like to be  searched by any gazetted officer or by a  magistrate".

In response to the aforesaid intimation each of the accused gave in  writing as follows:

       "Sir, I have no objection if you search me or  my scooter".

Sd/-                    Sd/-                                    Sd/- Ram Vilas               Prabhashankar           at 14.20 P.M.                  3.11.1998               3.11.98                 Thana Shahjaibad                                                         at 14.25 P.M.                                                                         Thana Shahjaibad".

       The notice in the present case has great similarity with what was  conveyed to the accused in Joseph Fernandez v. State of Goa (2000 (1)  SCC 707). It was inter alia held in the said case as follows:

       "2. Learned counsel tried to highlight a point  that Section 50 of the Act has not strictly been  complied with by PW-8, the officer who conducted the  search. According to the learned counsel for the  appellant the searching officer should have told the  person who was subjected to search that he had a  right to be searched in the presence of a gazetted  officer or a Magistrate. In this case PW-8 has  deposed that she told the appellant that if he wished  he could be searched in the presence of the gazetted  officer or a Magistrate to which the appellant had  not favourably reciprocated. According to us the said  offer is a communication about the information that  the appellant has a right to be searched so. It must  be remembered that the searching officer had only  Section 50 of the Act then in mind unaided by the  interpretation placed on it by the Constitution  Bench. Even then the searching officer informed him  that "if you wish you may be searched in the  presence of a gazetted officer or a Magistrate".  This according to us is in substantial compliance  with the requirement of Section 50. We do not agree  with the contention that there was non-compliance  with the mandatory provision contained in Section 50  of the Act".  

                       (Underlined for emphasis)

Though, learned counsel for the appellants submitted that this was a  case where the Court erroneously held that substantial compliance would

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be sufficient, we find that the underlined portion is what was held by  the Court to be information of the right. The offer in the present case  is almost a replica of what was said in that case.

Though there cannot be any quarrel with the general principle  highlighted by learned counsel for the appellants that if a thing is  required to be done in a particular way it should be done in that way,  the position here is different in view of our conclusions that the  requirements of Section 50 of the Act were sufficiently complied with.  The general principle as noted has been stated illuminatingly in Nazir  Ahmad v. King-Emperor (AIR 1936 P.C. 253), and later by this Court in  State of Uttar Pradesh v. Singhara Singh and Ors. (1964 (4) SCR 485).   What the concerned officer is required to do is to convey about the  choice the accused had. The accused (suspect) has to be told in a way  that he becomes aware that the choice is his and not of the concerned  officer, even though there is no specific form. The use of the word  ’right’ at relevant places in the decision of Baldev Singh’s case  (supra) seems to be to lay effective emphasis that it is not by the  grace of the officer the choice has to be given but more by way of a  right in the ’suspect’ at that stage to be given such a choice and the  inevitable consequences that have to follow by transgressing it.

       The use of the expression ’substantial compliance’ was made in the  background that the searching officer had Section 50 in mind and it was  unaided by the interpretation placed on it by the Constitution Bench in  Baldev Singh’s case (supra). A line or a word in a judgment cannot be  read in isolation or as if interpreting a statutory provision, to impute  a different meaning to the observations.  

Above being the position, we find no substance in the plea that  there was non-compliance with the requirements of Section 50 of the Act.  

It was pleaded that the requirements of Section 57 have not been  complied with. There was no material placed either before the trial  Court or the High Court to substantiate such a plea. The grievance in  this regard does not merit any consideration, leave alone the impact of  it on the guilt and conviction of the accused.    

       Additionally, it may also be noticed that while giving statement  under Section 313 of the Code of Criminal Procedure, 1973 (for short the  ’Code’), the accused did not say that he was unaware of his rights or  that he was misled on that account in any manner. On the contrary, in  general and vague manner it was only said that he did not know or he had  no idea of the allegations. Though that by itself is not sufficient to  convict accused, in view of the procedural safeguards required to be  observed by compliance with the requirements of Section 50, yet that is  of some relevance in appreciating the grievance, now sought to be  ventilated. There is no infirmity in the impugned judgment to warrant  interference. The appeals are accordingly dismissed.