REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 237 OF 2004

State of U.P.  .... Appellant

Versus

Subhash Kumar Singh Tomar ....Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.  

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Allahabad High Court allowing the appeal filed by the respondent.

On the accusation of offence committed punishable under Section 20(b) of

The Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘Act’)

the accused faced trial. Learned III Additional District  & Sessions Judge,

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Kanpur, found the accused guilty and sentenced him to 10  years  rigorous

imprisonment and to  pay a fine of Rs.1,00,000/-  with default  stipulation.

The case of the prosecution is that on 3.1.1991, PWs. 1 and 2 checked the

accused  and his  personal  search  resulted  in  recovery and  seizure  of  500

grams of charas. Two samples of 25 gms. each were separately taken and

sent  for  chemical  analysis.  On analysis  the  contraband  was  found  to  be

charas by the Public Analyst. Before the High Court the only stand taken by

the  accused  was  that  there  was  non-compliance  with  the  requirement  of

Section 50 of the Act. The High Court found on going through the evidence

of  PWs  1 and 2 that  there  is  nothing  to  suggest  that  the  requirement  of

Section 50 was complied with. Accordingly, the judgment of acquittal was

passed.  In  support  of  the  appeal,  learned  counsel  for  the  appellant-State

submitted that there is nothing to doubt the statement of public witnesses

PWs. 1 and 2 that they had seized the contraband articles from the accused

persons.

2. It  is  an  obligation  of  the  Empowered  Officer  and  his  duty  before

conducting  the  search  of  the  person  of  a  suspect  on  the  basis  of  prior

information to inform the suspect that he has the right to require his search

to be conducted in the presence of a Gazetted Officer or a Magistrate. The

failure to so inform the suspect of his right would render the search illegal

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because the suspect would not be able to avail of the protection which is in

compliance with Section 50. Similarly, if the person concerned required on

being so informed by the Empowered Officer or otherwise i.e. that search be

conducted  in  the  presence  of  a  Gazetted  Officer  or  Magistrate  the

Empowered Officer  is  obliged  to  do so  and failure  on his  part  to  do so

would cause prejudice to the accused and also render the search illegal and

the conviction and sentence to the accused based solely on recovery may

treat the search as bad.

3. Above being the position in law, the judgment of the High Court does

not suffer from any infirmity to warrant interference.

4. The appeal fails and is dismissed.

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

……............................................J. (LOKESHWAR SINGH PANTA)

……............................................J. (P. SATHASIVAM)

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New Delhi; April 15, 2009

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