Head
Notes:
1.
In our opinion, a
joint communication of the right available under Section 50(1) of the NDPS Act
to the accused would frustrate the very purport of Section 50. Communication of
the said right to the person who is about to be searched is not an empty
formality. It has a purpose. Most of the offences under the NDPS Act carry
stringent punishment and, therefore, the prescribed procedure has to be
meticulously followed. These are minimum safeguards available to an accused
against the possibility of false involvement. The communication of this right
has to be clear, unambiguous and individual.
2. It bears repetition to state that on the written communication
of the right available under Section 50(1) of the NDPS Act, respondent No.2
Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1
Parmanand has not signed on it at all. He did not give his independent consent.
It is only to be presumed that he had authorized respondent No.2 Surajmal to
sign on his behalf and convey his consent. Therefore, in our opinion, the right
has not been properly communicated to the respondents. The search of the bag of
respondent No.1 Parnanand and search of person of the respondents is, therefore,
vitiated and resultantly their conviction is also vitiated.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.78 OF 2005
State of Rajasthan …
Appellant
Vs.
Parmanand & Anr.
… Respondents
JUDGMENT:
(SMT.) RANJANA PRAKASH DESAI, J.
1.
The respondents were tried by the Special
Judge (NDPS Cases), Chhabra, District Baran for offences under Section 8 read
with Section 18 and under Section 8 read with Section 29 of the Narcotic Drugs
and Psychotropic Substances Act, 1985 (the NDPS
Act).
2.
The
case of the prosecution was that on 13/10/1997 during Kota Camp at Iklera, P.N.
Meena, Sub-Inspector, Office of the Narcotics Commissioner, Kota received information
at 1900 hours in the evening that the respondents were to handover about 10 Kg
opium on 14/10/1997 in the morning between 4.00 a.m. to 6.00 a.m. at
Nangdi-Tiraha, Iklera, Chhipabaraud Road to a smuggler. This information was
entered by SI Meena in the diary and he forwarded it to the Investigating
Officer J.S. Negi, Superintendent. J.S. Negi sent this information through Constable
B.L. Meena to Assistant Narcotic Commissioner, Kota. Thereafter, raiding party
was formed. The raiding party was headed by Superintendent J.S. Negi. The
raiding party reached Nangdi-Tiraha by a Government vehicle. Independent
witnesses Ramgopal and Gopal Singh were called by SI Qureshi. Their consent was
obtained. At about 4.25 a.m., the respondents came from the village Rajpura. On
seeing the raiding party, they tried to run away but they were stopped. Enquiry
was made with both the respondents in the presence of the independent witnesses
by SI Qureshi. The respondents gave their names. Respondent No. 1 Parmanand had
one white colour gunny bag of manure in his left hand. SI Qureshi told the respondents
that he had to take their search. They were told about the provisions of Section
50 of the NDPS Act. They were told that under Section 50(1) of the NDPS Act,
they had a right to get themselves searched in the presence of any nearest Magistrate
or any gazetted officer or in the presence of Superintendent J.S. Negi of the
raiding party. One written notice to that effect was given to them. On this
notice, appellant Surajmal gave consent in writing in Hindi for himself and for
appellant Parmanand and stated that they are ready to get themselves searched
by SI Qureshi in the presence of Superintendent J.S. Negi. He also put his
thumb impression. Thereafter, bag of respondent No. 1 Parmanand was searched by
SI Qureshi. Inside the bag in a polythene bag some black material was found.
The respondents told him that it was opium and they had brought it from the village.
The weight of the opium was 9 Kg. 600 gms. Necessary procedure of drawing
samples and sealing was followed. The respondents were arrested. After
completion of the investigation, respondent no. 1 Parmanand was charged for
offence under Section 8 read with Section 18 of the NDPS Act and respondent
No.2 Surajmal was charged for offence under Section 8 read with Section 18 and
for offence under Section 8 read with Section 29 of the NDPS Act. The prosecution
examined 11 witnesses. The important witnesses are PW-5 J.S. Negi, the
Superintendent, PW-9 SI Meena and PW-10 SI Qureshi. The respondents pleaded not
guilty to the charge. They contended that the police witnesses had conspired
and framed them. The case is false.
3.
Learned
Special Judge convicted respondent No.1 Parmanand under Section 8 read with
Section 18 of the NDPS Act and respondent No.2 Surajmal under Section 8 read
with Section 28 of the NDPS Act. They were sentenced for 10 years rigorous
imprisonment each and a fine of Rs.10 lakhs each. In default of payment of
fine, they were sentenced to undergo rigorous imprisonment for two years.
4.
Aggrieved by the said judgment and order, the respondents
preferred an appeal to the Rajasthan High Court. By the impugned order, the
Rajasthan High Court acquitted the respondents. Hence, this appeal by the
State.
5.
Mr.
Imtiaz Ahmed, learned counsel for the State of Rajasthan submitted that the
High Court was wrong in coming to the conclusion that there was no compliance
with Section 50 of the NDPS Act. Counsel submitted that PW-10 SI Qureshi has
clearly stated that the respondents were communicated their right under Section
50(1) of the NDPS Act. A written notice was also given to them and only after they
consented to be searched by PW-10 SI Qureshi in the presence of PW-5 J.S. Negi,
the Superintendent, that the search of their person and search of bag of
respondent No.1 Parmanand was conducted. Counsel submitted that the High Court
was also wrong in disbelieving independent pancha witnesses. Counsel urged that
the impugned order is perverse and deserves to be set aside.
6.
Ms.
Nidhi, learned counsel for the respondents, on the other hand, submitted that
admittedly notice under Section 50 of the NDPS Act was a joint notice. The
respondents were entitled to individual notice. The search is, therefore, vitiated.
In this connection, counsel relied on judgment of the Punjab and Haryana High
Court in Paramjit Singh and Anr. v. State
of Punjab 1997(1)
CRIMES 242 and
judgment of the Bombay High Court in Dharamveer
Lekhram Sharma and Another v. The State of Maharashtra and Ors. 2001(1) CRIMES 586
. Counsel submitted that search was a farce. The High Court has,
therefore, rightly acquitted the respondents.
7.
The
question is whether Section 50 of the NDPS Act was complied with or not. Before
we go to the legalities, it is necessary to see what exactly the important
police witnesses have stated about compliance of Section 50 of the NDPS Act.
The gist of the evidence of the police witnesses PW-5 J.S. Negi, the
Superintendent, PW-9 SI Meena and PW- 10 SI Qureshi is that the respondents
were informed that they have a right to be searched in the presence of a gazetted
officer or a nearest Magistrate or before J.S. Negi, the Superintendent, who
was present there. They were given a written notice. On that notice, respondent
No.2 gave his consent in Hindi in his handwriting that he and respondent No.1
Parmanand are agreeable to be searched by PW-10 SI Qureshi in the presence of
PW-5 J.S. Negi, the Superintendent. He signed on the notice in Hindi and put
his thumb impression. Respondent No.1 Parmanand did not sign. There is nothing
to show that respondent No.1 Parmanand had given independent consent. Search
was conducted. PW-10 SI Qureshi did not find anything on the person of the
respondents. Later on, he searched the bag which was in the left hand of
respondent No.1 - Parmanand. In the bag, he found black colour material which
was tested by chemical kit. It was found to be opium.
8.
In State of Punjab v. Balbir Singh (1994) 3 SCC 299, this Court held that
Section 50 of the NDPS Act is mandatory and noncompliance thereof would vitiate
trial. In State of Himachal Pradesh v.
Pirthi Chand (1996) 2 SCC 37 , this Court held that breach
of Section 50 does not affect the trial. There were divergent views on this
aspect and, therefore, a reference was made to the Constitution Bench. Out of
the three questions of law, which the Constitution Bench dealt with in State of Punjab v. Baldev Singh
(1999) 6 SCC 172 , the question which is
relevant for the present case is whether it is the mandatory requirement of
Section 50 of the NDPS Act that when an officer duly authorized under Section
42 of the NDPS Act is about to search a person, he must inform him of his right
under sub-section (1) thereof of being taken to the nearest gazetted officer or
nearest Magistrate. The conclusions drawn by the Constitution Bench, which are
relevant for this case could be quoted.
1) “ That when an empowered officer or a duly authorised
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 being taken to the nearest gazetted officer or
the 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 gazette 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.”
9. In this case, the conviction is solely based
on recovery of opium from the bag of respondent No.1 - Parmanand. No opium was
found on his person. In Kalema
Tumba v. State of Maharashtra (1999) 8
SCC 257 , this Court held that if a person is carrying a bag or some other
article with him and narcotic drug is recovered from it, it cannot be said that
it was found from his person and, therefore, it is not necessary to make an
offer for search in the presence of a gazetted officer or a Magistrate in
compliance of Section 50 of the NDPS Act. In State of Himachal Pradesh v. Pawan Kumar (2005) 4
SCC 350, three- Judge
Bench of this Court held that a person would mean a human being with
appropriate coverings and clothing and also footwear. A bag, briefcase or any
such article or container etc. can under no circumstances be treated as a body
of a human being. Therefore, it is not possible to include these articles
within the ambit of the word “person” occurring in Section 50 of the NDPS Act.
The question is, therefore, whether Section 50 would be applicable to this case
because opium was recovered only from the bag carried by respondent No.1 -
Parmanand.
10. In Dilip
& Anr. v. State of Madhya Pradesh (2007)
1 SCC 450 , on the basis of information, search
of the person of the accused was conducted. Nothing was found on their person.
But on search of the scooter they were riding, opium contained in plastic bag
was recovered. This Court held that provisions of Section 50 might not have
been required to be complied with so far as the search of the scooter is
concerned, but keeping in view the fact that the person of the accused was also
searched, it was obligatory on the part of the officers to comply with the said
provisions, which was not done. This Court confirmed the acquittal of the
accused.
11.
In Union of India v. Shah Alam (2009) 16 SCC 644 , heroin
was first recovered from the bags carried by the respondents therein. Thereafter,
their personal search was taken but nothing was recovered from their person. It
was urged that since personal search did not lead to any recovery, there was no
need to comply with the provisions of Section 50 of the NDPS Act. Following Dilip, it was held that
since the provisions of Section 50 of the NDPS Act were not complied with, the
High Court was right in acquitting the respondents on that ground.
12.
Thus,
if merely a bag carried by a person is searched without there being any search
of his person, Section 50 of the NDPS Act will have no application. But if the
bag carried by him is searched and his person is also searched, Section 50 of
the NDPS Act will have application. In this case, respondent No.1 Parmanand’s
bag was searched. From the bag, opium was recovered. His personal search was
also carried out. Personal search of respondent No.2 Surajmal was also
conducted. Therefore, in light of judgments of this Court mentioned in the
preceding paragraphs, Section 50 of the NDPS Act will have application.
13.
It is
now necessary to examine whether in this case, Section 50 of the NDPS Act is
breached or not. The police witnesses have stated that the respondents were
informed that they have a right to be searched before a nearest gazetted
officer or a nearest Magistrate or before PW-5 J.S. Negi, the Superintendent.
They were given a written notice. As stated by the Constitution Bench in Baldev Singh, it is not necessary
to inform the accused person, in writing, of his right under Section 50(1) of
the NDPS Act. His right can be orally communicated to him. But, in this case,
there was no individual communication of right. A common notice was given on
which only respondent No.2 – Surajmal is stated to have signed for himself and
for respondent No.1 – Parmanand. Respondent No.1 Parmanand did not sign.
14.
In our
opinion, a joint communication of the right available under Section 50(1) of
the NDPS Act to the accused would frustrate the very purport of Section 50. Communication
of the said right to the person who is about to be searched is not an empty
formality. It has a purpose. Most of the offences under the NDPS Act carry
stringent punishment and, therefore, the prescribed procedure has to be
meticulously followed. These are minimum safeguards available to an accused
against the possibility of false involvement. The communication of this right
has to be clear, unambiguous and individual. The accused must be made aware of
the existence of such a right. This right would be of little significance if
the beneficiary thereof is not able to exercise it for want of knowledge about
its existence. A joint communication of the right may not be clear or unequivocal.
It may create confusion. It may result in diluting the right. We are,
therefore, of the view that the accused must be individually informed that
under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest
gazetted officer or before a nearest Magistrate.
Similar
view taken by the Punjab & Haryana High Court in Paramjit Singh and the Bombay
High Court in Dharamveer Lekhram Sharma meets
with our approval. It bears repetition to state that on the written communication
of the right available under Section 50(1) of the NDPS Act, respondent No.2
Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1
Parmanand has not signed on it at all. He did not give his independent consent.
It is only to be presumed that he had authorized respondent No.2 Surajmal to
sign on his behalf and convey his consent. Therefore, in our opinion, the right
has not been properly communicated to the respondents. The search of the bag of
respondent No.1 Parnanand and search of person of the respondents is, therefore,
vitiated and resultantly their conviction is also vitiated.
15.
We also
notice that PW-10 SI Qureshi informed the respondents that they could be
searched before the nearest Magistrate or before a nearest gazetted officer or
before PW- 5 J.S. Negi, the Superintendent, who was a part of the raiding party.
It is the prosecution case that the respondents informed the officers that they
would like to be searched before PW-5 J.S. Negi by PW-10 SI Qureshi. This, in
our opinion, is again a breach of Section 50(1) of the NDPS Act. The idea
behind taking an accused to a nearest Magistrate or a nearest gazetted officer,
if he so requires, is to give him a chance of being searched in the presence of
an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell
the respondents that a third alternative was available and that they could be
searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding
party. PW-5 J.S. Negi cannot be called an independent officer. We are not
expressing any opinion on the question whether if the respondents had
voluntarily expressed that they wanted to be searched before PW-5 J.S. Negi,
the search would have been vitiated or not. But PW-10 SI Qureshi could not have
given a third option to the respondents when Section 50(1) of the NDPS Act does
not provide for it and when such option would frustrate the provisions of
Section 50(1) of the NDPS Act. On this ground also, in our opinion, the search conducted
by PW-10 SI Qureshi is vitiated. We have, therefore, no hesitation in
concluding that breach of Section 50(1) of the NDPS Act has vitiated the
search. The conviction of the respondents was, therefore, illegal. The respondents
have rightly been acquitted by the High Court. It is not possible to hold that
the High Court’s view is perverse. The appeal is, therefore, dismissed.
….……………………………….J.
(RANJANA PRAKASH DESAI)
…………………………………..J.
(MADAN B. LOKUR)
NEW
DELHI;
FEBRUARY
28, 2014.
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