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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: LABH SINGH

DATE OF JUDGMENT:       19/07/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (6)   598        1996 SCALE  (5)366

ACT:

HEADNOTE:

JUDGMENT:                             WITH              CRIMINAL APPEAL NOs.731-33 OF 1996         [@ SLP [Crl. Nos.2475, 2476 & 2477 of 1991]                          O R D E R      Leave granted.      These  appeals  arise  under  the  Narcotic  Drugs  and Pschotropic  Substances  Act,  1985.  The  respondents  were acquitted on trial on the ground that they were not informed of their  valuable right  that under  Section 50  of the Act they were  entitled to  be searched  in the  presence  of  a Gazetted Officer. Violation therefore. vitiates the trial as the accused  have the  statutory right  to be  searched. The absence of  their information as to the said right is one of the infirmities to the validity of their prosecution.      The question  was considered  in State  of  Punjab  vs. Balbir Singh  [1994) 3 SCC 299]. Subsequently, another Bench of this  Court in  State of Punjab v. Jasbir Singh [(1996) 1 SCC 288]  has pointed out hat it would be open to the search officer to  inform the  suspect, at the time of search, that he is  entitled to be searched in the presence of a Gazetted Officer and also to take in writing from the accused that he has been  so informed  and that  the accused has waived that right.  Thus   it  would   form  part   of  the   record  as contemporaneous evidence.  Thereafter, it may not be open to the accused to take the plea of noncompliance of Section 50. It would be for the Court to consider, at the trial, whether the officer  who conducted  the  search,  had,  as  a  fact, informed the  accused of  that right and whether the accused had waived that right of being searched only in the presence of a Gazetted Officer. This Court held that:      "The  matter   of  appreciation  of      evidence and  the totality  of  the      facts and  circumstances have to be      considered by  the trial  Court. On      the facts in that case, it was held      that since  the Additions  Sessions

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    Judge was  not inclined  to  accept      the prosecution case in the absence      of anything  in writing, this Court      confirmed the acquittal."      In State  of Himachal  Pradesh v.  Prithi Chand  & Anr. [(1996) 2 SCC 37], this Court further elaborately considered the effect  of the violation of Section 50 and held that any evidence recorded  and recovered  in violation of the search and the  contraband seized  in violation  of  the  mandatory requirement does  not  ipso  facto  invalidates  the  trial. Section 50 contemplates right to be searched in the presence of a  Gazetted  Officer.  It  depends  upon  the  facts  and circumstances in  each case. It was found that the discharge of the accused on that ground was deprecated. In view of the long delay  in the  matter, this Court declined to interfere with the  discharge recorded  by t  he  Additional  Sessions Judge.      In view  of the settled legal position that the accused has valuable  right to  be  informed  of  his  right  to  be searched in  the presence  of a Gazetted Officer, the search officer invariably  would conduct  the search subserving the salutory right  given under  Section 50. Each case should be considered in  the light  of the  facts and circumstances in which the  contraband was seized, viz., time when the search was conducted, the place where it was seized, whether police had prior  information of  the contraband being in transport or  place   of  concealment,   whether  there   was   proper opportunity to  the police  to  secure  the  presence  of  a Gazetted Officer;  whether the  delay in  search and seizure would result  in the  escape of  the accused  from arrest or contraband would be destroyed or wisked away and host of all relevant attendant circumstances. Each case depends upon its own factual  scenario  and  no  exhaustive  or  mathematical formula of universal application can be laid down. The Court has to consider each case on its own setting. In view of the absence of  any writing  from the accused to the effect that the accused  was informed of his right and that the same was waived taken  by the  officer who conducted the searched and seized the contraband and in view of the long delay that has taken place, we think that these may not be cases warranting interference with the order of acquittal at this distance of time.      The appeals are accordingly, dismissed. The respondents are directed to be set at liberty forthwith.