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CASE NO.: Appeal (crl.)  541 of 2005

PETITIONER: State of Rajasthan

RESPONDENT: Ram Chandra

DATE OF JUDGMENT: 12/04/2005

BENCH: ARIJIT PASAYAT & S.H. KAPADIA)

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.)No. 3316/2003)

ARIJIT PASAYAT, J.

                Leave granted.

       The State of Rajasthan is in appeal against the judgment of  learned Single Judge, Rajasthan High Court, Jaipur Bench, Jaipur  holding that there was non-compliance with the mandatory requirements  of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985  (in short the ’Act’). The said conclusion was arrived at on the ground  that though the accused respondent had been given the option of being  searched in the presence of Shri Satyender Singh (PW-3), the Deputy  Superintendent of Police, he was in essence a member of the raiding  party and, therefore, the search in his presence cannot at all be said  to be in consonance with Section 50 of the Act, though he was a  Gazetted Officer.                   Background facts in a nutshell are as under:

       On 8.9.1995 Prem Shaker Meena (PW-2), SHO Police Station,  Kotwali, Baran having received information about illicit trafficking in  narcotic substances, rushed to the place pointed out by the informant  and apprehended the accused respondent. Satyendra Singh, Dy. S.P. (PW- 3) also reached there. Subsequently, being of the suspicion that  accused respondent was in possession of contraband, the SHO informed  him of his right to have his search conducted either in presence of  Shri Satyendra Singh, Dy. S.P. (PW-3) who was a Gazetted Officer and  happened to be present there or in the presence of any magistrate. The  accused consented for his search to be conducted in the presence of the  Dy. S.P. (PW-3).  On being searched, 570 grams of opium was recovered  from his possession in the presence of Ramesh Chand (PW-5) and Rajendra  Kumar (PW-6). Out of the recovered opium, a sample weighing 30 grams  was taken and was sealed. The remaining opium was also sealed. The  accused was accordingly arrested vide arrest memo Ex.P-5 and memo of  recovery was prepared.  The SHO, thereafter, registered a case vide FIR  Ex.P-4 and deposited the recovered opium in the ’Malkhana’. During  investigation, the police recorded the statement of witnesses and sent  the sample to the Forensic Science Laboratory. On chemical examination,  the sample contained in the packet marked ’B’ gave positive tests for  the chief constituents of coagulated juice of opium poppy having 5.43%  morphine.

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       After completion of all these formalities, the accused was charge  sheeted under Sections 8 and 18 of the Act. The Trial Judge framed  charges against the accused under Sections 8 and 18 of the Act, to  which the accused denied and claimed trial.             

       The learned Sessions Judge, Baran held that the accused was  guilty, convicted him in terms of Sections 8 and 18 of the Act and  sentenced him to undergo 10 years RI with a fine of rupees one lakh  with a default stipulation of one year’s RI.

       In appeal, the main stand of the accused respondent was that  there was non-compliance with the requirements of Sections 42 and 50 of  the Act. The High Court held that since the accused was searched on a  public road and the contraband articles were seized, Section 42 of the  Act had no application in view of Explanation appended to Section 43 of  the Act. It was noted that Prem Shanker (PW-2) who was an authorized  officer under Section 42 of the Act informed the accused of his right  to be searched in the presence of the Deputy Superintendent of Police  (PW-3) who happened to be a Gazetted Officer and was present at the  site and if he desired, he can be taken to any Magistrate. The accused  consented for his search in the presence of the Deputy Superintendent  of Police and accordingly search was conducted in the presence of PW-3,  the Deputy Superintendent of Police which was witnessed by other  witnesses, Ramesh Chandra (PW-5) and Rajendra Kumar (PW-6). But, it was  held that the consent given by the accused to be searched in the  presence of the Deputy Superintendent of Police (PW-3) was not  sufficient compliance of Section 50 of the Act.   

       Learned counsel appearing for the State of Rajasthan submitted  that the High Court’s approach is clearly erroneous. It is not a fact  that PW-3 was a member of the raiding party as was observed by the High  Court. Further, option was given to the accused to be searched in the  presence of PW-3 or if he wanted he could be taken to the Magistrate.  The accused himself having consented to be searched in the presence of  PW-3, there was no infirmity.  

       In response, learned counsel for the accused-respondent submitted  that more trust is put on the Gazetted Officer and, therefore, the High  Court was right in holding that the accused should have taken to some  other Gazetted Officer.  

Only question to be adjudicated is the alleged non-compliance of  Section 50. The said provision reads as follows: "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 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."

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A bare reading of Section 50 shows that it only applies in case  of personal search of a person. It does not extend to search of a  vehicle or a container or a bag, or premises. (See Kalema Tumba v.  State of Maharashtra and Anr. (JT 1999 (8) SC 293), State of Punjab v.  Baldev Singh (1999 (6) SCC 172) and Gurbax Singh v. State of Haryana  (2001(3) SCC 28). The language of Section 50 is implicitly clear that  the search has to be in relation to a person as contrasted to search of  premises, vehicles or articles.  This position was settled beyond doubt  by the Constitution Bench in Baldev Singh’s case (supra).

       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 casts 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-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.

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(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  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

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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. 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.

       The above position was elaborately dealt with in Prabha Shankar  Dubey v. State of Madhya Pradesh (2003 AIR SCW 6592) and in Madan Lal  and Anr. v. State of Himahal Pradesh (2003 (6) Supreme 382).   

       These aspects were highlighted and reiterated in Smt. Krishna  Kanwar @ Thakuraeen v. State of Rajasthan (JT 2004 (1) SC 597).         Section 50 of the Act deals with conditions under which search of  a person shall be conducted. Section 50 comes in operation when an  officer authorized in terms of Section 42 is to search any person,  under the provisions of Sections 41, 42 and 43. Here comes the  requirement of informing the person about to be searched to exercise  his option to be searched in the presence of nearest Gazetted Officer,  of any of the departments mentioned in Section 42 or the nearest  Magistrate.  

       If the person so requires, the officer referred to under sub- section (1) of Section 50 may detain the person to bring him before the  Gazetted Officer or the Magistrate, as the case may be. As was noticed  in Raghbir Singh’s case (supra) the Act affords the person to be  searched a safeguard to the effect that he may require the search to be  conducted in the presence of a senior officer. The senior officer may

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be a Gazetted Officer or a Magistrate depending upon who is  conveniently available. That being the purpose of the Act, if any  Gazetted Officer even if he is a police officer of a particular rank is  present nearby when the accused is detained, the accused may be asked  as to whether he would like to be searched in the presence of that  officer or a Magistrate. The foundation of the stand taken by the  accused-respondent which found favour with the High Court is that if he  is a member of the raiding party the requirements of Section 50 are not  met. This is not legally tenable, and in any event on the facts of the  present case it was not so because PW-3, the Deputy Superintendent of  Police reached the spot after the person was detained.

As noted above, in Raghbir Singh’s case (supra) the option given  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.  In the instant case all the options were made known to the accused and  he himself opted to be searched in the presence of the Deputy  Superintendent of Police (PW-3).

       Sections 41, 42, 43 or Section 50 do not speak of a raiding  party.  Section 41(2) speaks of arrest by any officer of gazetted rank  of enumerated department or by an officer subordinate to him (but  superior in rank to a peon, sepoy or a constable) to arrest such a  person.  Under sub-section (1) of Section 41 a warrant may be addressed  to an officer for arrest of a person under circumstances enumerated in  the said provision.  Section 42 deals with action permissible to be  taken by an officer authorized.  Section 43 deals with power of an  officer of any of the departments mentioned in Section 42.  The officer  exercising power under Sections 41, 42 and 43 can take assistance of  others for the purpose of carrying out the prescribed acts.                  The conclusions of the High Court would have been correct if the  officer proposing to effect the search is a Gazetted Officer and he  gives option to be given under Section 50 to the person detained to be  searched in his presence. In that event, the requirement of Section 50  would not be met because the officer proposing to effect the search  cannot act in dual capacity; first as an officer authorized under  Section 42 to search a person and second as the Gazetted Officer in  whose presence the accused may opt to be searched.  

       The object of the Act being that the search is conducted in the  presence of a superior officer, in order to lend transparency and  authenticity to the search it cannot be held as a principle in law that  if a superior officer happens to be with the officer authorized (which  the High Court has described as being a member of the raiding party)  the position would be different. The High Court proceeds on the basis  that there may be bias on the part of the officer because he was  accompanying the officer authorized. Such a presumption is not legally  available.                       

       The High Court was, therefore, not correct in holding that the  search in the presence of PW-3 was not in compliance with the  requirements of Section 50. Stress is on the search being conducted in  the presence of any of the enumerated categories of the officers. In S.  Jeevanatham v. State through Inspector of Police, T.N. (2004 (5) SCC  230), it was contended  by the accused that investigation having been  conducted by the complainant-police officer, the conviction in terms of  Section 8(c) read with Section 20(b)(ii) of the Act was vitiated. The  plea was repelled relying on the decision of this Court in State  represented by Inspector of Police, Vigilance and Anti-corruption,  Tiruchirapalli, T.N. v. Jayapaul (2004 (5) SCC 223). It was observed  that nothing was pointed out to show that the investigation had caused

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prejudice or was biased against the accused. In the instant case, the  accused was informed of his rights and options to be exercised. He  consented to be searched in the presence of PW-3. Therefore, it was not  open to him even to urge non-compliance of Section 50.  

In fact in S. Jeevanatham’s case (supra) this Court did not  accept the plea that an officer who was the complainant cannot be the  investigating officer. The question of prejudice or bias has to be  established and not inferred. In any event, there cannot be any legal  presumption in that regard. At this juncture, it is to be noted that  under sub-section (3) of Section 50, the Gazetted Officer or the  Magistrate before whom the person who is to be searched is brought can,  in a given case, come to hold that there is no reasonable ground for  the search and shall forthwith "discharge" the person. Otherwise, he  shall direct the search to be made. The expression ’discharge’ used in  sub-section (3) of Section 50 is used in the sense that the detention  is terminated.

       The powers to detain, search and arrest have been conferred by  Sections 41(2), 42 and 43. Under Section 42(1)(d) the officer  authorized may between sunrise and sunset detain and search and if he  thinks proper arrest any person who he has reason to believe has  committed an offence punishable under Chapter IV relating to the  notified drug or substance. The question of arrest comes after a person  is detained and searched and thereafter if the officer thinks proper  arrest can be effected on the foundation that the officer has reason to  believe that the person so detained and searched has committed an  offence punishable under Chapter IV.  It cannot be said that the person  accompanying the officer authorized cannot say ’No’ to the proposed  search even if he sees no reasonable ground for search. It is the  legislative trust imposed on a superior officer to act fairly and  reasonably. Therefore, it is for the accused to establish prejudice  which is to be done at the trial. On the facts of the case, actually  these questions do not arise.  The object of requiring the search to be  conducted if so required before the specified Gazetted officer or  nearest Magistrate is to ensure that the officers who are charged with  a duty of conducting search conduct them properly and do no harm or  wrong such as planting of an offending drug by any interested party and  preventing fabrication of any false evidence. The provision in essence  intends to act as a safeguard against vexatious search, unfair dealings  and to protect and safeguard the interest of innocent persons. In order  to avoid arrest and nip the investigation in the bud thereby protecting  the liberty of a person, a statutory safeguard is provided in sub- section (3) of Section 50. Power has been vested in the Magistrate or  the Gazetted Officer before whom the concerned person is brought on his  requisition made under sub-section (2) to forthwith discharge the  person without formal proceedings on his satisfaction that there is no  reasonable ground for search. As a consequence, search takes place only  when he declines to discharge such a person.             Firstly, as noted above PW-3 arrived at the spot after the person  was detained and search was proposed to be done by the officer  authorized. Secondly, the respondent-accused was given the option as to  whether he would like to be searched in the presence of PW-3 or the  nearest magistrate. He exercised his option to be searched in the  presence of PW-3.  

High Court’s conclusions are clearly untenable. The inevitable  result is that the High Court’s judgment is indefensible and is set  aside and that of the trial Court is restored. The accused shall  surrender to custody forthwith to serve the remainder of the sentence.  Appeal is allowed.