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                                                                            REPORTABLE                   IN THE SUPREME COURT OF INDIA                              CRIMINAL APPELLATE JURISDICTION

                                   CRIMINAL APPEAL NO. 145 OF 2003

                  STATE OF RAJASTHAN                    .. APPELLANT

                         vs.

                  BHANWAR LAL & ANR.                    .. RESPONDENTS

                                                        JUDGMENT

Dr. ARIJIT PASAYAT

            Challenge in this appeal by the State of Rajasthan is to a judgment of the

  learned single Judge of the Rajashtan High Court directing acquittal of the

  respondents - Bhanwar Lal and Mohan Lal. Both these accused persons faced trial for

  alleged commission of offences punishable under Sections 8 and 18 of the Narcotic

  Drugs ad Psychotropic Substances Act, 1985 (in short ‘NDPS Act’). The accused

  Mohan Lal was convicted in terms of Sections 8 read with Sec.18 and awarded ten

  years R.I. along with fine of Rs.1,00,000/- (rupees one lakh) with default stipulation.

  The appellant Bhanwar Lal was convicted under Sections 8 and 18 of the NDPS Act

  and awarded 12 years R.I. along with fine of Rs.2,00,000/- (Rupees two lakhs). He was

  also convicted for the offences under Section 8 read with Sec.20 of the NDPS Act and,

  therefore, separately awarded two years R.I. with fine of Rs.2,000/- with default

  stipulation.

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         The trial court found that the evidence led by the prosecution is credible and

cogent and recorded conviction as noted above. The High Court found that there was

non-compliance with the requirements of Sec.50 of the Act and directed acquittal.

         It is brought to our notice by learned counsel that the accused Bhanwar Lal

has died on 12/10/2003 and therefore the appeal does not survive so far as he is

concerned.

         Coming to the case of the accused Mohan Lal, learned counsel for the

appellant State submitted that the High Court went on discarding the evidence of the

Dy. Superintendent of Police PW.16 on the ground of alleged variation in testimony

vis.a.vis. PW.12. It is pointed out that while PW.16 stated that he asked the accused as

to whether they wanted to be searched by Gazetted Officer, or Magistrate in the sense

that he himself was a Gazetted Officer. PW.12 stated that the accused persons were

asked whether they wanted to be searched in the presence of PW.16 himself or

Magistrate. This according to the learned counsel for the appellant-State is not a

proper way of reading the evidences.

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         Learned counsel for the respondent on the other hand submitted that the

quantity seized was below 25 grams. Reference is made to a Notification No. G.O.

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327E dated 16/7/1996 of the Central Government issued in exercise of power under

Section 27 of the Act which provides that if an accused is found in possession upto 25

grams of opium then such accused can be awarded such sentence as meant for "small

quantities".   According to him, the quantity of 20 grams was meant for the

respondent’s personal use.    It is also pointed out that the recovery was made on

23/12/1996 and it was sent to the office of the Superintendent of Police where allegedly

the same was not accepted and was sent back to the police station. What prompted this

action, according to the learned counsel for the respondent has not been clarified by

the prosecution.

         A reading of the evidences of PW 12 and 16 shows no material contradiction

regarding information given to the accused to exercise the option to be examined in the

presence of Gazetted Officer or a Magistrate. The High Court was not justified in

drawing that inference. The version of PW.1‘6 is in line with what is stated in Ext.P.8.

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          It was observed as follows at para 13 in 2005 (5) SCC 151.

                   "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

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process of search has been given primacy. In Raghbir Singh vs. State of Haryana the true essence of Section 50 was highlighted in the following manner: (SCC pp.204-05, paras 8-11)           "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 vs. State of Rajashtan. One of us (Verma, J.), speaking for the Bench, held:

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         ‘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 exercised by the officer making the search and not by the accused.’   9    We concur with the view taken in Manohar Lal case.   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

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             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

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             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."

         Therefore, the acquittal as recorded was not justified. However, as rightly

contended by learned counsel for the respondent Mohan Lal that the quantity seized

was less than 25 grams. That being so, Section 27 of the Act has application in terms of

the Notification referred above. It is stated that he is in custody for more than two

years and 7 months. That being so it will be appropriate to restrict the sentence to the

period already undergone. The appeal is allowed to the aforesaid extent.

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                            ................ .J.                                                 (Dr. ARIJIT PASAYAT)

                                    ...................J.                  (ASOK KUMAR GANGULY) New Delhi, March 3, 2009.