Held :
1. In view of the foregoing discussion, we are of the firm
opinion that the object with which right under Section 50(1) of the NDPS Act,
by way of a safeguard, has been conferred on the suspect, viz. to check the
misuse of power, to avoid harm to innocent persons and to minimise the
allegations of planting or foisting of false cases by the law enforcement
agencies, it would be imperative on the part of the empowered officer to
apprise the person intended to be searched of his right to be searched before a
gazetted officer or a Magistrate. We have no hesitation in holding that in so
far as the obligation of the authorised officer under sub-section (1) of
Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict
compliance. Failure to comply with the provision would render the recovery of
the illicit article suspect and vitiate the conviction if the same is recorded
only on the basis of the recovery of the illicit article from the person of the
accused during such
search.
2.
The key to the
opening of every law is the reason and spirit of the law, it is the animus imponentis,
the intention of the law maker expressed in the law itself, taken as a whole.”
We are of the opinion that the concept of “substantial compliance” with the
requirement of Section 50 of the NDPS Act introduced and read into the mandate
of the said Section in Joseph
Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of
sub-section (1) of Section 50 nor it is in consonance with the dictum laid down
in Baldev Singh’s case (supra). Needless to add that the question whether or not
the procedure prescribed has been followed and the requirement of Section 50
had been met, is a matter of trial. It would neither be possible nor feasible
to lay down any absolute formula in that behalf.
REPORTABLE
IN
THE SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO. 943 OF 2005
VIJAYSINH
CHANDUBHA JADEJA —
APPELLANT (S)
VERSUS
STATE
OF GUJARAT — RESPONDENT
(S)
WITH
CRIMINAL
APPEAL NO.974 OF 2003 & CRIMINAL APPEAL NO.1809 OF 2009
J U D G M E
N T: D.K. JAIN, J.
1.
The
short question arising for consideration in this batch of appeals is whether
Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for
short “the NDPS Act”) casts a duty on the empowered officer to ‘inform’ the
suspect of his right to be searched in the presence of a Gazetted Officer or a
Magistrate, if he so desires or whether a mere enquiry by the said officer as
to whether the suspect would like to be searched in the presence of a
Magistrate or a Gazetted Officer can be said to be due compliance with the
mandate of the said Section?
2. When
these appeals came up for consideration before a bench of three Judges, it was
noticed that there was a divergence of opinion between the decisions of this
Court in the case of Joseph Fernandez
Vs. State of Goa [(2000) 1 SCC 707], Prabha
Shankar Dubey Vs. State of M.P.[ (2004) 2 SCC 56] on the one hand and Krishna Kanwar (Smt) alias Thakuraeen Vs.
State of Rajasthan [(2004) 2 SCC 608] on the other, with regard to the
dictum laid down by the Constitution Bench of this Court in State of Punjab Vs. Baldev Singh[(1999)
6 SCC 172] , in particular regarding the question whether before conducting
search, the concerned police officer is merely required to ask the suspect
whether he would like to be produced before the Magistrate or a Gazetted
Officer for the purpose of search or is the suspect required to be made aware
of the existence of his right in that behalf under the law. It would be expedient
to extract the relevant portion of the order:-
“When the matter came up before this Court, it was found
that in some of the decisions rendered by this Court, a slightly different view
was taken than what was expressed by the Constitution Bench with regard to
interpretation of Section 50 of the NDPS Act. In the case Joseph Fernandez
Vs. State of Goa, 2001 (1) SCC p.707, a Bench of three Hon’ble Judges held
that even when the searching officer informed him that “if you wish you may be
searched in the presence of a gazette officer or a Magistrate”; it was held
that it was in substantial compliance with the requirement of Section 50 of the
NDPS Act, and the Court observed that it did not agree with the contention that
there was non-compliance of the mandatory provisions contained in Section 50 of
the NDPS Act. In another decision of
this Court in Prabha Shankar Dubey Vs. State of M.P. 2004(2) SCC p.56,
the following information was conveyed to the accused: “By way of this notice,
you are informed that we have received information that you are illegally
carrying opium with you, therefore, we are required to search your scooter and
you for this purpose. You would like to give me search or you would like to be
searched by a gazetted officer or by a Magistrate”. This was held to be substantial
compliance of Section 50 of the NDPS Act. In Krishan Kanwar (Smt.) Alias
Thakuraeen Vs. State of Rajasthan, 2004(2) SCC p.608, the same question was
considered and it was held that there is no specific form prescribed or
initiated for conveying the information required to be given under Section 50
of the NDPS Act and it was held that “what is necessary is that the accused
(suspect) should be made aware of the existence of his right to be searched in
the 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 requirement 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 a straitjacket formula.
…………………………………………………………………
…………………………………………………………………
Thus, in a way, it all depends on the oral evidence of
the officer who conducts search, in case nothing is mentioned in the search
mahazar or any other contemporaneous document prepared at the time of search.
In view of the large number of cases coming up under the provisions of the NDPS
Act the interpretation of Section 50 of the Act requires a little more clarification
as its applicability is quite frequent in many cases. In appreciating the law
laid down by the Constitution Bench in Baldev Singh’s case (supra), we
have noticed that conflicting decisions have been rendered by this court. We
feel that the matter requires some clarification by a larger Bench. The matter
be placed before the Hon’ble Chief Justice of India for taking further action
in this regard.”
That is how these
appeals came to be placed before this Constitution Bench.
3.
Since
the cases have come up before us for a limited purpose of clarification as to
the interpretation of Section 50 of the NDPS Act by the Constitution Bench in Baldev Singh’s case (supra), we deem it
unnecessary to state the background facts, giving rise to these appeals.
4.
We have heard learned counsel for the
appellant, State of Gujarat, State of West Bengal, Government of National
Capital Territory of Delhi and learned Additional Solicitor General on behalf
of Union of India.
5.
Mr. P.H. Parekh, learned senior counsel
appearing on behalf of appellant (Criminal Appeal No.943 of 2005), strenuously
urged that a conjoint reading of Section 50(1) and 50(3) of the NDPS Act, in
its common grammatical connotation, makes it abundantly clear that the procedural
safeguards envisaged under Section 50 are to be employed effectively and
honestly while informing, apprising and advising the suspect of his vested
right to be searched only by a Gazetted Officer or a Magistrate. It was
contended that the ambit of statutory protection granted by the Parliament
under Section 50(1) of the NDPS Act having been explained unambiguously and
clearly by the Constitution Bench in the case of Baldev Singh (supra),
there is no scope for any other interpretation or clarification of Section 50
of the NDPS Act.
6.
Learned counsel vehemently contended that in
the light of the dictum laid down in Baldev Singh (supra), the decisions
of this Court in Joseph Fernandez (supra) and Prabha Shankar Dubey
(supra) wherein the concept of ‘substantial compliance’ has been erroneously read
into Section 50 of the NDPS Act, do not lay down the correct proposition of
law. It was argued that Section 50 being the only safeguard provided to the
suspect under the NDPS Act, the legislature, while enacting it, gave it the
character of a “due process” clause, thereby placing some minimum procedural
limitations on the exercise of such extensive statutory power, by insisting on
the strict observance of the procedure established under the said Section.
According to the learned counsel, this safeguard is meant to ensure that the
powers under the NDPS Act are not abused and a person is not falsely implicated
and subjected to grave consequences which are likely to follow under the said
Act. Relying on the decision of this Court in Beckodan Abdul Rahiman Vs. State
of Kerala [(2002) 4 SCC 229], learned counsel submitted that the harsh provisions
of the NDPS Act cast a heavier duty upon the prosecution to strictly follow and
comply with the safeguards.
7.
Learned counsel thus, argued that the theory
of ‘substantial compliance’ cannot be applied to defeat, negate or neutralise
important safeguards provided by the legislature. It was asserted that merely
asking the suspect whether he would like to be produced before a Magistrate or
a Gazetted Officer for the purpose of the search can never amount to due compliance
with Section 50 of the NDPS Act.
8.
Mr.
Siddharth Luthra, learned senior counsel appearing on behalf of State of
Gujarat, on the other hand, submitted that the rigours of Section 50 of the
NDPS Act are neither applicable to the officers who have been empowered by a
warrant under Section 41(1); nor to the gazetted/empowered officers who order
search or arrest under Section 41(2). It was argued that Section 41(1) of the
NDPS Act grants the Magistrate the power to issue warrants for arrest or search,
whether by day or night, inter alia, in relation to a person whom the
Magistrate has reason to believe has committed an offence under the NDPS Act.
It was urged that a reading of Sections 41(1), 41(3), 42, 43 and 50 of the NDPS
Act shows that an officer acting under a warrant by a Magistrate under Section
41(1) would not fall within the ambit of Section 50(1) of the NDPS Act. It was
submitted that from the language of Section 41(2) of the NDPS Act, it is clear
that the Central Government or the State Government, as the case may be, can
only empower an officer of a gazetted
rank who can either himself act or authorise his subordinate on the terms
stated in the Section. On the contrary, however, under Section 42(1) of the
NDPS Act, there is no restriction on the Central Government or the State
Government to empower only a gazette officer and, therefore, additional checks
and balances over officers acting under Section 42 have been provided in the
proviso to Section 42(1) and in Section 42(2) of the NDPS Act. It was, thus,
contended that the language of Section 42 of the NDPS Act makes it clear that
the provision applies only to an officer empowered under Section 42(1) and not
an empowered Gazetted Officer under Section 41(2) of the NDPS Act. In support of
the submission that a distinction between a Gazetted Officer and an officer
acting under Section 42 of the NDPS Act has to be maintained, learned counsel
commended us to the decisions of this Court in M. Prabhulal Vs. Assistant
Director, Directorate of Revenue Intelligence [(2003) 8 SCC 449] and Union of India Vs. Satrohan [.7
(2008) 8 SCC 313] It was pleaded that
the divergent view on the point expressed by this Court in Ahmed Vs. State of Gujarat [(2000)
7 SCC 477], does not lay down the correct proposition of law.
9.
It was then contended by Mr. Luthra that a
reading of sub-sections (1) and (3) of Section 50 of the NDPS Act makes it
clear that the right granted to a suspect is not the right to be searched
before the nearest Gazetted Officer or nearest Magistrate, but the right to be
taken before the nearest Gazetted Officer or nearest Magistrate, whereupon such
officer or Magistrate is duly empowered under Section 50(3), to either discharge
the suspect from detention or direct that a search be made. In support of the
proposition, reliance is placed on a decision of this Court in State
of Rajasthan Vs. Ram Chandra (2005) 5 SCC 151.
10. Learned counsel also
submitted that the decisions of this Court in State of Punjab Vs. Balbir Singh
(1994) 3 SCC 299, Saiyad Mohd. Saiyad Umar Saiyad & Ors. Vs. State of Gujarat
(1995) 3 SCC 610, Ali Mustaffa Abdul Rahman Moosa Vs. State of Kerala (1994) 6
SCC 569 and affirmed in Baldev
Singh (supra) have all read the phrase ‘for making the search’ into
Section 50(1) of the NDPS Act, which has led to safeguards and protections to
an accused person, as envisaged under Section 50 of the NDPS Act to be read down,
making the said provision virtually ineffective and, therefore, the decision of
this Court in Baldev Singh (supra) needs reconsideration.
11. Adopting the same line of arguments, Mr. P.P.
Malhotra, the learned Additional Solicitor General, appearing on behalf of the
Government of NCT of Delhi maintained that it is clear from language of
Sections 41(2), 42 and 43 of the NDPS Act that the legislature has dealt with gazetted
officers differently, reposing higher degree of trust in them and, therefore,
if a search of a person is conducted by a gazetted officer, he would not be
required to comply with the rigours of Section 50(1) of the Act. It was argued
that the view expressed by this Court in Ahmed
(supra), is incorrect and, therefore, deserves to be reversed.
12. The
NDPS Act was enacted in the year 1985, with a view to consolidate and amend the law relating to narcotic drugs,
incorporating stringent provisions for control and regulation of operations
relating to narcotic drugs and psychotropic substances. The object of the said
legislation has been explained time and again by this Court in a plethora of
cases and, therefore, we feel that it is not necessary to delve upon this
aspect all over again, except to re-emphasise that in order to prevent abuse of
the provisions of the NDPS Act, which confer wide powers on the
empowered officers,
the safeguards provided by the Legislature have to be observed strictly.
Moreover, having regard to the terms of reference to the larger Bench,
extracted above, it is equally unnecessary to extract extensively all the
provisions of the NDPS Act to which reference was made by learned counsel
appearing for the States, and a brief reference to these provisions would
suffice.
13. Under Section 41 of the NDPS Act,
certain classes of Magistrates are competent to issue warrants for the arrest
of any person whom such Magistrates have reason to believe to have committed
any offence punishable under the NDPS Act, or for the search of any building, conveyance
or place in which such Magistrate has reason to believe any narcotic drug or
psychotropic substance or controlled substance in respect of which an offence
punishable under the said Act has been
committed or any
document or other article which may furnish evidence of the commission of such
offence or any illegally acquired property or any document or other article
which may furnish evidence of holding any illegally acquired property which is
liable for seizure or freezing or forfeiture under Chapter VA is kept or
concealed. Under Section 42 of the NDPS Act, the empowered officer can enter,
search, seize and arrest even without warrant or authorisation, if he has
reason to believe from his personal knowledge or information taken down in writing,
that an offence under Chapter IV of the said Act has been committed. Under
proviso to sub-section (1), if such officer has reason to believe that a search
warrant or authorisation cannot be obtained without affording opportunity for
the concealment of evidence or facility for the escape of an offender, he may
enter and search such building, conveyance or enclosed place at any time
between sunset and sunrise after recording the grounds of his belief and send
the same to his immediate official superior in terms of sub-section (2) of the Section.
14. Section 50 of the NDPS Act prescribes the
conditions under which personal search of a person is required to be conducted.
Being the pivotal provision, the Section, (as amended by Act 9 of 2001 –
inserting sub-sections (5) and (6) with effect from 2nd October 2001) is
extracted in full. It reads as under:
“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.
(5) When an officer duly authorised under section
42 has reason to believe that it is not possible to take the person to be searched
to the nearest Gazetted Officer or Magistrate without the possibility of the
person to be searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or article or document, he may,
instead of taking such person to the nearest Gazetted Officer or Magistrate,
proceed to search the person as provided under section 100 of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section
(5), the officer shall record the reasons for such belief which necessitated
such search and within seventy-two hours send a copy thereof to his immediate
official superior.”
15. Sub-section (1) of the said Section
provides that when the empowered officer is about to search any suspected
person, he shall, if the person to be
searched so requires, take him to the nearest gazetted officer or the Magistrate
for the purpose. Under sub-section (2), it is laid down that if such request is
made by the suspected person, the officer who is to take the search, may detain
the suspect until he can be brought before such gazetted officer or the
Magistrate. It is manifest that if the suspect expresses the desire to be taken
to the gazetted officer or the Magistrate, the empowered officer is restrained
from effecting the search of the person concerned. He can only detain the
suspect for being produced before the gazetted officer or the Magistrate, as
the case may be. Subsection (3) lays down that when the person to be searched
is brought before such gazetted officer or the Magistrate and such gazetted
officer or the Magistrate finds that there are no reasonable grounds for
search, he shall forthwith discharge the person to be searched, otherwise he shall
direct the search to be made. The mandate of Section 50 is precise and clear,
viz. if the person intended to be searched expresses to the authorised officer
his desire to be taken to the nearest gazetted officer or the Magistrate, he
cannot be searched till the gazetted officer or the Magistrate, as the case may
be, directs the authorised officer to do so.
16. .At this juncture, we must state that the
issue before us in terms of the referral order is not about the applicability
of Section 50 of the NDPS Act per se but is confined to the scope and width of
the expression “if the person to be searched so requires” as figuring in
sub-section (1) of the said Section. Therefore, we deem it unnecessary to
evaluate the submissions made by the learned counsel regarding the
applicability of the rigours of Section 50 of the NDPS Act when a search of the
suspect is conducted by an officer empowered under Section 41 of the said Act. We
may, however, add that while considering the question of compliance with
Section 50 of the NDPS Act, the Constitution Bench in Baldev Singh (supra) considered the provisions of Section 41 as well.
It observed as under :-
“8. Section 41
of the NDPS Act provides that a Metropolitan Magistrate or a Magistrate of the
First Class or any Magistrate of the Second Class specially empowered by the
State Government in this behalf, may issue a warrant for the arrest of and for
search of any person whom he has reason to believe to have committed any
offence punishable under Chapter IV. Vide sub-section (2) the power has also
been vested in gazette officers of the Departments of Central Excise,
Narcotics, Customs, Revenue Intelligence or any other department of the Central
Government or of the Border Security Force, empowered in that behalf by a general or
special order of the State Government to arrest any person, who he has reason
to believe to have committed an offence punishable under Chapter IV or to
search any person or conveyance or vessel or building etc. with a view to seize
any contraband or document or other article which may furnish evidence of the
commission of such an offence, concealed in such building or conveyance or vessel
or place.”
17. .In the above
background, we shall now advert to the controversy at hand. For this purpose,
it would be necessary to recapitulate the conclusions, arrived at by the
Constitution Bench in Baldev Singh’s case (supra). We are concerned with the
following conclusions:-
“57. (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 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.
Xxxxxxxxxxxxxxxxxxxx
(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, may 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.”
18. .Although the
Constitution Bench did not decide in absolute terms the question whether or not
Section 50 of the NDPS Act was directory or mandatory yet it was held that
provisions of sub-section (1) of Section 50 make it imperative for the
empowered officer to “inform” the person concerned (suspect) about the
existence of his right that if he so requires, he shall be searched before a
gazetted officer or a Magistrate; failure to “inform” the suspect about the
existence of his said right would cause prejudice to him, 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 the person during a search conducted in violation of
the provisions of Section 50 of the NDPS Act. The Court also noted that it was
not necessary that the information required to be given under Section 50 should
be in a prescribed form or in writing but it was mandatory that the suspect was
made aware of the existence of his right to be searched before a gazetted
officer or a Magistrate, if so required by him. We respectfully concur with
these conclusions. Any other interpretation of the provision would make the
valuable right conferred on the suspect illusory and a farce.
19. . As noted above, sub-sections (5) and (6)
were inserted in Section 50 by Act 9 of 2001. It is pertinent to note that
although by the insertion of the said two sub-sections, the rigour of strict
procedural requirement is sought to be diluted under the circumstances
mentioned in the subsections, viz. when the authorised officer has reason to
believe that any delay in search of the person is fraught with the possibility
of the person to be searched parting with possession of any narcotic drug or psychotropic
substance etc., or article or document, he may proceed to search the person
instead of taking him to the nearest gazetted officer or Magistrate. However,
even in such cases a safeguard against any arbitrary use of power has been
provided under sub-section (6). Under the said sub-section, the empowered
officer is obliged to send a copy of the reasons, so recorded, to his immediate
official superior within seventy two hours of the search. In our opinion, the
insertion of these two sub-sections does not obliterates the mandate of
sub-section (1) of Section 50 to inform the person, to be searched, of his
right to be taken before a gazetted officer or a Magistrate. The object and the
effect of insertion of sub-sections (5) and (6) were considered by a
Constitution Bench of this Court, of which one of us (D.K. Jain, J.) was a member, in Karnail Singh Vs. State of Haryana . (2009) 8 SCC 539 Although in
the said decision the Court did observe that by virtue of insertion of
sub-sections (5) and (6), the mandate
given in Baldev Singh’s case (supra)
is diluted but the Court also opined that it cannot be said that by the said
insertion, the protection or safeguards given to the suspect have been taken
away
completely. The Court
observed :-
“Through this amendment the strict procedural requirement
as mandated by Baldev Singh case was avoided as relaxation and fixing of the
reasonable time to send the record to the superior official as well as exercise
of Section 100 CrPC was included
by the legislature. The effect conferred upon the
previously mandated strict compliance with Section 50 by Baldev Singh case
was that the procedural requirements which may have handicapped an emergency
requirement of search and seizure and give the suspect a chance to escape were
made directory based on the reasonableness of such emergency situation. Though
it cannot be said that the protection or safeguard given to the suspects have
been taken away completely but certain flexibility in the procedural norms were
adopted only to balance an urgent situation. As a consequence the mandate given
in Baldev Singh case is diluted.”
20. .It can, thus, be
seen that apart from the fact that in Karnail Singh (supra), the issue was
regarding the scope and applicability of Section 42 of the NDPS Act in the
matter of conducting search, seizure and arrest without warrant or
authorisation, the said decision does not depart from the dictum laid down in Baldev
Singh’s case (supra) in so far as the obligation of the empowered
officer to inform the suspect of his right enshrined in sub-section (1) of
Section 50 of the NDPS Act is concerned. It is also plain from the said
paragraph that the flexibility in procedural requirements in terms of the two
newly inserted sub-sections can be resorted to only in emergent and urgent
situations, contemplated in the provision, and not as a matter of course.
Additionally, subsection (6) of Section 50 of the NDPS Act makes it imperative
and obligatory on the authorised officer to send a copy of the reasons recorded
by him for his belief in terms of sub-section (5), to his immediate superior
officer, within the stipulated time, which exercise would again be subjected to
judicial scrutiny during the course of trial.
21. .We shall now deal
with the two decisions, referred to in the referral order, wherein “substantial
compliance” with the requirement embodied in Section 50 of the NDPS Act has
been held to be sufficient. In Prabha Shankar Dubey (supra), a
two Judge bench of this Court culled out the ratio of Baldev Singh’s case
(supra), on the issue before us, as follows:
“What the officer concerned is required to do is to
convey about the choice the accused has.
The accused (suspect) has to be told in a way that he becomes aware that the
choice is his and not of the officer concerned, even though there is no
specific form. The use of the word “right” at relevant places in the decision
of Baldev Singh case seems to be to lay effective emphasis that it is not by
the grace of the officer the choice has to be given but more by way of a right
in the “suspect” at that stage to be given such a choice and the inevitable
consequences that have to follow by transgressing it.”
However, while
gauging whether or not the stated requirements of Section 50 had been met on
facts of that case, finding similarity in the nature of evidence on this aspect
between the case at hand and Joseph Fernandez (supra), the Court
chose to follow the views echoed in the latter case, wherein it was held that
searching officer’s information to the suspect to the effect that “if you wish
you may be searched in the presence of a gazetted officer or a Magistrate” was
in substantial compliance with the requirement of Section 50 of the NDPS Act.
Nevertheless, the Court indicated the reason for use of expression “substantial
compliance” in the following words:
“The use of the expression “substantial compliance” was
made in the background that the searching officer had Section 50 in mind and it
was unaided by the interpretation placed on it by the Constitution Bench in Baldev
Singh case. A line or a word in a judgment cannot be read in isolation or
as if interpreting a statutory provision, to impute a different meaning to the observations.”
It is manifest from
the afore-extracted paragraph that Joseph Fernandez (supra) does not
notice the ratio of Baldev Singh (supra) and in Prabha Shankar Dubey
(supra), Joseph Fernandez (supra) is followed ignoring the dictum laid
down in Baldev Singh’s case (supra).
22. In view of the
foregoing discussion, we are of the firm opinion that the object with which
right under Section 50(1) of the NDPS Act, by way of a safeguard, has been
conferred on the suspect, viz. to check the misuse of power, to avoid harm to
innocent persons and to minimise the allegations of planting or foisting of
false cases by the law enforcement agencies, it would be imperative on the part
of the empowered officer to apprise the person intended to be searched of his
right to be searched before a gazetted officer or a Magistrate. We have no
hesitation in holding that in so far as the obligation of the authorised
officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is
mandatory and requires a strict compliance. Failure to comply with the provision
would render the recovery of the illicit article suspect and vitiate the
conviction if the same is recorded only on the basis of the recovery of the
illicit article from the person of the accused during such search. Thereafter,
the suspect may or may not choose to exercise the right provided to him under
the said provision. As observed in Re Presidential Poll (1974) 2 SCC 33
, it is the duty of the courts to get at the real intention of the Legislature
by carefully attending to the whole scope of the provision to be construed.
“The key to the opening of every law is the reason and spirit of the law, it is
the animus imponentis, the intention
of the law maker expressed in the law itself, taken as a whole.” We are of the
opinion that the concept of “substantial compliance” with the requirement of
Section 50 of the NDPS Act introduced and read into the mandate of the said
Section in Joseph Fernandez (supra) and Prabha Shankar Dubey
(supra) is neither borne out from the language
of sub-section (1) of
Section 50 nor it is in consonance with the dictum laid down in Baldev
Singh’s case (supra). Needless to add that the question whether or not
the procedure prescribed has been followed and the requirement of Section 50
had been met, is a matter of trial. It would neither be possible nor feasible
to lay down any absolute formula in that behalf. We also feel that though
Section 50 gives an option to the empowered officer to take such person
(suspect) either before the nearest gazetted officer or the Magistrate but in
order to impart authenticity, transparency and creditworthiness to the entire proceedings,
in the first instance, an endeavour should be to produce the suspect before the
nearest Magistrate, who enjoys more confidence of the common man compared to
any other officer. It would not only add legitimacy to the search proceedings,
it may verily strengthen the prosecution as well.
23. .Accordingly, we
answer the reference in the manner aforesaid. The
appeals shall, now,
be placed before the appropriate Bench for disposal.
.……………………………..…..…J.
(D.K. JAIN)
.……………………………..…..…J.
(B. SUDERSHAN REDDY)
.……………………………..…..…J.
(DR. MUKUNDAKAM SHARMA)
.……………………………..…..…J.
(R.M. LODHA)
.……………………………..…..…J.
(DEEPAK VERMA)
NEW DELHI;
OCTOBER 29, 2010.
