RANJAN KUMAR CHADHA v. STATE OF HIMACHAL PRADESH

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT J. B. PARDIWALA, J.

1Copy pinpoint1. The captioned appeals are at the instance of a convict accused of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act”) and are directed against the judgment and order of conviction dated 20.08.2010 and the order of sentence dated 16.09.2010 resply passed by the High Court of Himachal Pradesh in the Criminal Appeal No. 356 of 1999 by which the High Court allowed the appeal filed by the State of Himachal Pradesh and thereby set aside the judgment and order of acquittal passed by the Sessions Judge, Kullu dated 31.03.1999 in the Sessions Trial No. 44 of 1998. With the High Court allowing the State’s acquittal appeal, the appellant herein stood convicted of the offence punishable under Section 20 of the NDPS Act.

2Copy pinpoint2. The appellant was heard on the point of sentence and ultimately, the High Court vide order dated 16.09.2010 sentenced the appellant herein to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 50,000/- (Rupees Fifty Thousand Only), and in default of payment of fine to undergo further rigorous imprisonment for six months.

RANJAN KUMAR CHADHA v. 297 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

CASE OF THE PROSECUTION

3Copy pinpoint3. On 23.08.1998 ASI Lal Singh (PW 14) was on patrolling duty along with Head Constable Mohan Lal (PW 12), Constable Sant Ram (PW 13) and Constable Baldev Dass (PW 6). At about 6.30 pm while they all were at Dhalpur, the ASI Lal Singh (PW 14) received a secret information that one well built person wearing a white T-shirt and green trouser was standing at the Sarwari bus stand and was ready to board a bus bound for Delhi. The information was that the said person at the bus stand had in his possession contraband in the form of charas. The secret information was recorded by the PW 14 and forwarded to the Superintendent of Police, Kullu through the Constable Baldev Dass (PW 6). The ASI Lal Singh (PW 14), HC Mohan Lal (PW 12) and Constable Sant Ram (PW 13) accordingly left for Sarwari bus stand and reached there at about 6.45 pm. The officers were able to locate and identify the said person at the bus stand carrying a bag on his shoulder. In the presence of two independent witnesses, the said person was asked to disclose his identity. The person standing at the bus stand disclosed his identity as Ranjan Kumar Chadha son of Shri Ved Parkash Chadha resident of New Delhi. As the police officials suspected that he may be carrying charas, they gave him the option of being searched before the police or before a Gazetted Officer or Magistrate. The person concerned consented to be searched before the police. Before the search of the person of the accused was undertaken, the police officials got themselves searched before the witnesses. The bag which the accused was carrying along with him was also searched. The search of the bag resulted in recovery of three polythene bags containing charas. Many other articles like the driving licence, etc. were also recovered from his bag. On being weighed, the charas was found to be 1 kg. 250 gms.

4Copy pinpoint4. Two samples of 25 grams each were drawn from the polythene bags containing charas and the remaining charas was sealed with seal “H”. Seal impression was also taken on the NCB form and seal was handed over to the PW 9 Surinder Kumar. The charas was taken into possession vide recovery memo Ext. PK which was signed by the witnesses PW 9 Surinder Kumar, PW 10 Karam Singh and PW 12 Mohan Lal resply. The accused was informed of the grounds of his arrest, etc. vide memo Ext. PL. Ruqua Ext. PG was prepared and sent to the police station through the Constable Sant

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Ram. The site plan Ext. PP was prepared on the spot. The statements of the witnesses were recorded. Thereafter, PW 14 came to the Police Station along with the accused and deposited the case property including the samples and the NCB form before the SHO who resealed the case property and samples with seal-X. One of the samples was sent for chemical examination to the CIL, Kandaghat and vide report Ext. PO the samples were found to be of charas having resin content of 33.58%. On this basis the accused was charge sheeted with having committed an offence as aforesaid.

5Copy pinpoint5. The accused pleaded not guilty before the Trial Court and claimed to be tried. The defence of the accused was that when the bus was about to leave for Delhi and while the accused was sitting in the bus with some other passengers, one unclaimed bag was found and the accused was wrongly stated to be the owner of the said bag. In short, the case of the accused before the Trial Court was that he was falsely implicated in the case.

6Copy pinpoint6. The Trial Court upon appreciation of the oral as well as documentary evidence came to the conclusion that the prosecution had failed to prove its case against the accused beyond a reasonable doubt and accordingly, acquitted the accused.

7Copy pinpoint7. The State of Himachal Pradesh, being dissatisfied with the judgment and order of acquittal passed by the Trial Court, went in appeal before the High Court. The appeal came to be allowed by the High Court and the appellant herein stood convicted for the offence under Section 20 of the NDPS Act.

8Copy pinpoint8. In such circumstances referred to above, the appellant is here before this Court with the present appeals. SUBMISSIONS ON BEHALF OF THE APPELLANT

9Copy pinpoint9. Mrs. Pragya Baghel, the learned counsel appearing for the appellant, vehemently submitted that the High Court committed a serious error in holding the appellant guilty of the offence under the NDPS Act. She would submit that the High Court should not have disturbed a well reasoned judgment of acquittal passed by the Trial Court. The learned counsel submitted that the High Court committed a serious error in recording the

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finding that Section 50 of the NDPS Act is not applicable in the present case as the recovery of the contraband substance was not made as a result of the personal search of the accused but on account of the search of his bag.

10Copy pinpoint10. It was argued that the expression “to search any person” occurring in Section 50 of the NDPS Act means search of articles on the person or body of the person to be searched as well as the search of articles in immediate possession like bag and other luggage carried by him or in physical possession of the person to be searched.

11Copy pinpoint11. The learned counsel argued that Section 50 of the NDPS Act was not complied with in its letter and spirit as although the case of the prosecution is that the appellant was given the option to be searched before the police or a Gazetted Officer or Magistrate, yet the appellant accused was not told that it is his right to be searched in the presence of a Magistrate or Gazetted Officer. The learned counsel argued that the fact that the accused was also given a third option of being searched before the police officer itself violated Section 50 of the NDPS Act. She would argue that Section 50 of the NDPS Act is mandatory and the Trial Court rightly held that Section 50 of the NDPS Act was not complied with.

12Copy pinpoint12. In the last, the learned counsel argued that in case of search of person of the accused as well as the luggage which is in his immediate possession, then even in such circumstances Section 50 of the NDPS Act will apply and would have to be complied with. She would argue that in the case on hand not only the search of the person of the accused was undertaken but the search of the bag was also undertaken. To fortify this submission, the learned counsel relied on the decision of this Court in the case of SK. Raju alias Abdul Haque alias Jagga v. State of West Bengal reported in (2018) 9 SCC 708. According to the learned counsel, the ratio of the decision of this Court in SK. Raju (supra) is that if the search is of both the bag as well as the person of the accused, Section 50 of the NDPS Act would be attracted.

13Copy pinpoint13. In such circumstances referred to above, the learned counsel prayed that there being merit in her appeals, the same be allowed and the judgment and order of conviction and sentence passed by the High Court may be set aside.

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SUBMISSIONS ON BEHALF OF THE STATE

14Copy pinpoint14. Mr. Anil Nag, the learned counsel appearing for the State, on the other hand, vehemently opposed these appeals submitting that no error, not to speak of any error of law, could be said to have been committed by the High Court in passing the impugned judgment and order of conviction and sentence. He would argue that the High Court was justified in holding the appellant herein guilty of the offence punishable under Section 20 of the NDPS Act. It was vehemently argued that Section 50 of the NDPS Act is not applicable at all in the present case as the search was made only of the bag which the appellant was carrying on his shoulder and the person of the appellant was not searched. It was argued that the decision of this Court in SK. Raju (supra) is of no avail to the appellant herein as in the said case not only the person of the accused was searched but even the bag was searched and as the recovery of the contraband was from the bag, this Court took the view that Section 50 of the NDPS Act would be attracted.

15Copy pinpoint15. The learned counsel appearing for the State in support of his aforesaid submission placed strong reliance on the decision of this Court in the case of State of Punjab v. Baljinder Singh reported in (2019) 10 SCC 473.

16Copy pinpoint16. In such circumstances referred to above, the learned counsel appearing for the State prayed that there being no merit in the appeals, those may be dismissed. ANALYSIS

17Copy pinpoint17. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the High Court committed any error in holding the appellant herein guilty of the offence punishable under Section 20 of the NDPS Act?

18Copy pinpoint18. Before we advert to the rival submissions canvassed on either side, we must look into the relevant findings recorded by the High Court as well as by the Trial Court.

19Copy pinpoint19. The Trial Court in its judgment of acquittal, while discussing Section 50 of the NDPS Act and its compliance, held as under:-

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“11. Regarding compliance of provisions of section 5O of the Act, which is also a mandatory provisions under the Act, none of the witnesses of this consent memo EX.PG have supported the version of the prosecution. PW-9 Surinder Kumar and PW-10 Karam Singh independent witnesses joined in the raiding party have categorically stated that no such notice was given in their presence to the accused nor accused gave in writing the endorsement EX. PG/1 in their presence. There is only bare statement of PW-14 ASI Lal Singh that this notice was given to the accused but when there were admittedly independent witnesses present on the spot as per case of the prosecution, who have been declared hostile in court, it was for the prosecution to prove that these witnesses have suppressed truth from the court, but nothing has been proved against them as to why they should have deposed falsely against the prosecution or in favour of the accused and therefore, it is held that the prosecution has failed to prove beyond reasonable doubt the compliance of Section 50 of the Act, which is mandatory provision and on this score the accused Ranjan Chadha is entitled to acquittal. Moreover the recovery of charas from the bag of the accused is alleged to have taken place in presence of PW-9 Surinder Kumar and PW-10 Karam Singh in addition to PW-12 HC Mohan Lal, PW-13 Sant Ram and PW-14 ASI Lal Singh. However both the independent witnesses PW-9 Surinder Kumar and PW-10 Karam Singh have been declared hostile when they deposed that no bag was found in possession of the accused in their presence nor search of the accused was conducted in their presence and nothing has been proved against them, in their cross examination as to why they should have deposed falsely. From the statements of these witnesses, who have been declared hostile, I am of the opinion that reasonable doubt has been created in the case of the prosecution by the accused regarding alleged recovery of charas from the conscious and exclusive possession of the accused and accordingly by giving the benefit of doubt to the accused, it is held that the prosecution has failed to prove that on 23.8.1998 at 6.30 pm 1.250 grams of charas was recovered from the conscious and exclusive possession of the accused point No. I is accordingly answered.”

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20Copy pinpoint20. The High Court, while reversing the judgment and order of acquittal passed by the Trial Court and more particularly on the issue of applicability of Section 50 of the NDPS Act, held as under:- “As far as Section 50 of the Act is concerned the same is not at all applicable to the facts of the present case. The recovery of the contraband substance was not made as a result of the personal search of the accused but on account of the search from his bag. In such eventuality the police is not required to comply with Section 50 of the Act. In this behalf reference may be made to the decision of the Apex Court in State of Himachal Pradesh Versus Pawan Kumar Latest HLJ 2004 [SC] 1247.” ORAL EVIDENCE ON RECORD:-

21Copy pinpoint21. We shall now look into the deposition of PW 12 Mohan Lal. Head Constable No. 175, Kullu Police Station. PW 12 in his examination in chief has deposed as under:- “Stated that I am posted in P.S. Kullu since 1997. On 23.8.1998 I with ASI Lal Singh, Constable Sant Ram and Baldev Dass proceeded from P.S. Kullu at 5.30 p.m. for patrolling. At about 6.30 p.m. ASI received secret information at Dhalpur. Whereupon ASI Lal Singh prepared Information Report and sent to S.P. through Const. Baldev Dass and I and ASI Lal Singh and Const. Sant Ram went to Bus Stand. Kullu (Sarbari). We reached Sarbari Bus Stand at 6.45 p.m. Surender, Bus Stand lncharge and Karam Singh were made to join the investigation. Accused Ranjan Chadha present in the court was standing in the verandah of Bus Stand and he had a black blue colour bag on his shoulder. Before witnesses Surender and Karam Singh, notice was issued by ASI Lal Singh to the accused to the effect that ASI has apprehension that you may be having charas in your possession and whether he wants to give his search to ASI or before G.O. or Magistrate. Accused gave in writing that he wants his search to be conducted by the police. Memo of this was also prepared. Accused told his name as Ranjan Kumar Chadha. After that accused along with witnesses was taken to a room which is adjacent to the room of Incharge of Bus Stand. ASI searched the bag and besides personal luggage of Ranjan Chadha, Charas in three polythene packets were

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recovered from the bag and it was weighed and the charas was found to be 1 kg. 250 gms. Out of which two samples of 25 gm. each were taken and sample and recovered charas were separately sealed in two packets with seal H. After affixing seal on samples, the seal was handed over to Surender Kumar witness. After that ASI prepared Rukka and gave it to constable who took the Rukka to police station. Accused was arrested and accused was told of the ground of arrest and sentence. Accused and witnesses Surender Singh, Karam Singh and I affixed our respective signature on the Consent Memo Exh.PJ, Recovery Memo Exh.PK, Grounds of Arrest Exh.PN. Exh.P.1 packet and Exh.P.2 sample are same. Personal search of accused was conducted. Exh.PE the memo of personal search bears my signature as witness.”

22Copy pinpoint22. We also looked into the cross examination of the PW 12 by the defence counsel. We take notice of the fact that nothing substantial could be elicited from the PW 12 in his cross examination. We also take notice of the fact that except suggestions put to the witness, there is no other form of cross examination.

23Copy pinpoint23. We shall now look into the evidence of PW 14 ASI Lal Singh of Kullu Police Station. The PW 14 in his examination in chief has deposed as under:- “Stated that I am posted in P.S. Kullu since 1997. On 23.8.98, I along with HC Mohan Lal, Constables Sant Ram and Baldev Dass moved out of police station Kullu at 5.30 p.m. for patrolling. The departure report was entered in the GD. When we were present at Dhalpur at 6.30 p.m., I got information from informer that one person wearing white T Shirt and green pajama and having French cut beard and is healthy is having one big bag with him and he with charas is ready to go to Delhi by bus from Sarbari Bus Stand. Thereupon I prepared information report and sent it to SP, Kullu through Constable Baldev Dass. Exh.PB is copy of it. After that I, with HC Mohan Lal, Constable Sant Ram went to Sarbari Bus Stand on foot and we reached Sarbari bus stand at 6.45 p.m. Surender Kumar, Bus Stand Incharge and Karam Singh were asked to join the investigation who joined the investigation. The person with same features as told by informer was found standing at that bus stand who had a bag on his shoulder. Before witnesses I

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asked name of that person whereupon that person told his name as Ranjan Kumar Chadha S/o Ved Prakash Chadha, Sarva Priya Vihar, New Delhi. Before the witnesses, I asked that person that police has apprehension that he is in possession of charas and whether he wants that his personal search is to be conducted by police or by any G.0. or Magistrate. The accused present in the court is the same person who had given his consent in writing and verbally that he is ready to give his search to me. Consent Memo Exh.PJ was prepared in this regard and accused has given his consent thereon by writing the same in his handwriting. After that I gave my personal search through Exh.PM in the presence of witnesses. Then the bag which accused was holding was searched before the witnesses. Bag was black blue colour on which MITRE was found written. On search of bag, besides other belongings of accused such as D.L., Diary, etc., three polythene packets were recovered in which Charas in the form of Battis and tablets were recovered. On weighing, charas 1 kg. 250 gms. was found out of recovered charas, 2 samples of 25 grns. each were taken out and charas and samples were sealed with seal H. After filling up NCB Form and sample seal, seal was handed over to witness Surender Kumar. Charas was seized through seizure memo Exh.PJ on which accused affixed his signature and witnesses affixed their signatures. Accused was informed through Exh.PN regarding grounds of arrest, etc. Rukka Exh.PH was prepared and sent to Police Station through Constable Sant Ram and after registration of FIR he brought the file from police station. Site plan Exh.PP was prepared correctly. Statements of witnesses were recorded. Statement of Surender Kumar Marked X, now Exhibited as Exh.PQ and statement of Karam Singh marked Y now exhibited as Exh.PR have been correctly recorded by me as given by them. Nothing was left out and nor anything was added of my own in their statements. Memo of personal search Exh.PE was prepared and tickets Exh.PF for Delhi Bus was recovered from accused. Thereafter I with accused and case property came to police station. Case property, sample and NCB Form were submitted by me to SHO who sealed case property and sample with seal X. Parcels are Exh.P1 and Sample is Exh.P2. Accused was produced in the court on 24.8.98 and remand of accused obtained. During investigation, accused informed that charas has been

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given to him by Nathan Ashley for taking the same to Delhi and that person is staying at Nest Guest House located near bus stand. We went to that Guest House but no person of this name was found there. On 25.8.98 I prepared special report and sent to SP through. constable Lakshman Dass and Exh.PC is copy of the same. After completing the investigation, documents and papers were given to SHO who (SHO) has prepared the challan.”

24Copy pinpoint24. We also looked into the cross examination of the PW 14 by the defence counsel. We take notice of the fact that nothing substantial could be elicited from the PW 14 in his cross examination. We also take notice of the fact that except suggestions put to the witness, there is no other form of cross examination.

25Copy pinpoint25. What is pertinent to note in the oral evidence of PW 12 and PW 14 respectively referred to above, is that the appellant herein was told or rather informed that if he so desired, he may get himself searched before the ASI or before the Gazetted Officer or Magistrate. Thus, it is evident from the oral evidence of both PW 12 and PW 14 resply that three options were given to the appellant herein – first to be searched before the ASI i.e. Assistant Sub-Inspector, second, before the Gazetted Officer and third, before any Magistrate. It is also pertinent to note that the appellant was not informed in so many words that it is his right under Section 50 of the NDPS Act to seek search before a Gazetted Officer or Magistrate.

26Copy pinpoint26. So far as the issue of applicability of Section 50 of the NDPS Act is concerned, there are two aspects of the same. Even if we hold that Section 50 of the NDPS Act was not complied with, then the second question would be, whether Section 50 could at all be made applicable to the case on hand.

27Copy pinpoint27. We have no hesitation in recording a finding that Section 50 of the NDPS Act was not complied with as the appellant could not have been offered the third option of search to be conducted before the ASI. Section 50 of the NDPS Act only talks about a Gazetted Officer or Magistrate. What is the legal effect if an accused of the offence under the NDPS Act is being told, whether he would like to be searched before a police officer or a Gazetted Officer or Magistrate?

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28Copy pinpoint28. This Court in State of Rajasthan v. Parmanand and another, (2014) 5 SCC 345, held that it is improper for a police officer to tell the accused that a third alternative is also available i.e. the search before any independent police officer. This Court also took the view that a joint communication of the right available under Section 50 of the NDPS Act to the accused would frustrate the very purport of Section 50. We quote the relevant observations made by this Court as under:- “15. 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 1 Parmanand’s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent 2 Surajmal was also conducted. Therefore, in the light of the judgments of this Court mentioned in the preceding paragraphs, Section 50 of the NDPS Act will have application.

16. 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 the nearest gazetted officer or the nearest Magistrate or before PW 5 J.S. Negi, the Superintendent. They were given a written notice. As stated by the Constitution Bench in State of Punjab v. Baldev Singh (1999) 6 SCC 172, 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 2 Surajmal is stated to have signed for himself and for respondent 1 Parmanand. Respondent 1 Parmanand did not sign.

17. 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

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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 the nearest gazetted officer or before the nearest Magistrate. Similar view taken by the Punjab and Haryana High Court in Paramjit Singh v. State of Punjab, (1977) 1 Crimes 242 (P&H) and the Bombay High Court in Dharamveer Lekhram Sharma v. State of Maharashtra (2001) 1 Crimes 586 (Bo0m) meets with our approval.

18. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent Surajmal has signed for himself and for respondent 1 Parmanand. Respondent 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 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 1 Parnanand and search of person of the respondents is, therefore, vitiated and resultantly their conviction is also vitiated.

19. We also notice that PW 10 SI Qureshi informed the respondents that they could be searched before the nearest Magistrate or before the 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 the nearest Magistrate or the nearest gazetted officer, if he so requires, is to give him a chance of being searched in

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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.” (Emphasis supplied)

29Copy pinpoint29. Thus, from the oral evidence on record as discussed above it is evident that Section 50 of the NDPS Act stood violated for giving a third option of being searched before a police officer.

30Copy pinpoint30. However, the important question that falls for our consideration is whether Section 50 of the NDPS Act is at all applicable to the present case? We have noticed few discrepancies in the oral evidence of PW 12 and PW 14 respectively and the finding recorded by the High Court. The High Court in its impugned judgment has said in so many words that the appellant was searched in presence of the independent witnesses and the bag, which was on the shoulder of the appellant was also searched. But for the discrepancies, we could have considered applying the ratio as enunciated by this Court in the case of SK. Raju (supra) as well as Parmanand (supra). However, there is nothing in the oral evidence of the police officers on record to indicate that the search of the person of the appellant was also undertaken along with the bag. Therefore, we proceed on the assumption that it is only the bag which was searched which led to the recovery of the contraband.

31Copy pinpoint31. The question, therefore, that requires consideration is what meaning should be assigned to the phrase “to search any person” occurring in Section 50 of the NDPS Act. Whether the phrase “to search any person” means (a) search of articles on the person or body of the person; (b) would include search of articles in immediate possession as such bag or other luggage

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carried by him or in physical possession of the person to be searched; (c) would include search of bag or luggage which is presumed to be in possession of the person even though it may be lying in a house or railway compartment or at the airport; or (d) whether application of Section 50 could be extended to a case of search of a place, a conveyance or a house if the accused is physically present at the time of the search.

32Copy pinpoint32. Section 50 of the NDPS Act is reproduced hereinbelow:- “Section 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 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

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within seventy-two hours send a copy thereof to his immediate official superior.”

33Copy pinpoint33. Ordinarily, it could be said or argued that “to search any person” would mean, to search the articles on the person or body of the person to be searched and would normally not include the articles which are not on the body of the person to be searched. When we are deliberating on the scope and true purport of Section 50 of the NDPS Act, we should bear in mind that the main object of Section 50 of the NDPS Act is to avoid the allegation of planting something or fabricating evidence by the prosecution or the authorized officer.

34Copy pinpoint34. The aforesaid interpretation is made clear to a certain extent by Section 50(4) of the NDPS Act which provides for search of a female. Section 50(4) of the NDPS Act provides that “no female shall be searched by anyone excepting a female”. If the articles to be searched are not on the person or body, then there is no question of a search being carried out by a female. But when articles which are on the body of the person to be searched, then such search could be only done by another female. This is necessary as the law enjoins strict regard to decency. This provision also gives some clue as to how to interpret the phrase “to search any person” occurring in Section 50 of the NDPS Act.

35Copy pinpoint35. There is a similar provision in the Code of Criminal Procedure, 1898 (for short, “CrPC 1898”) and also in the Code of Criminal Procedure, 1973 (for short, “CrPC 1973”). Section 51, Part III, of the CrPC 1898, provides that the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other than necessary wearing apparel, found upon him. With regard to search of a female, Section 51(2) of the CrPC 1973, provides that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. Same safeguards are provided under Section 102(3) of the CrPC 1898 and Section 100 of the CrPC 1973.

36Copy pinpoint36. Considering the aforesaid provisions, the inference which can be drawn is that “to search any person” would mean only search of the body or wearing apparels of such person and in that case the procedure which is required to be followed would be the one prescribed under Section 50 of

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the NDPS Act. In contrast, if search of any building, conveyance or place, including a public place, is to be carried out, then there is no question of following the procedure prescribed under Section 50. However, when a suspected or arrested person is to be searched, then the procedure prescribed under Section 50 comes into operation and the procedure thereunder is required to be followed. This can be seen by referring to Section 100(3) of the CrPC 1973 which provides that where any person is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. The concealment which is suspected is on the person or about his person.

37Copy pinpoint37. The provisions of Section 50 were exhaustively construed by this Court in the case of State of Punjab v. Balbir Singh, (1994) 3 SCC 299. We may refer to the relevant observations made in paragraph 21 of the aforesaid judgment which deals with this aspect. It is as under:- “21. Both under Sections 41 and 42, the officers empowered can enter and search the place and also arrest the person suspected to have committed the offence either on the basis of his own knowledge or on the basis of information reduced to writing. If an arrest is made and a person is to be searched, then as noted above Section 50 comes into operation and the search of the person has to be carried out in the manner provided thereunder. …” (Emphasis supplied)

38Copy pinpoint38. The aforesaid observations make it clear that when search of an arrested person is to be carried out, then the procedure prescribed under Section 50 is to be followed and not in those cases where search is to be carried out of any building, a conveyance or any premises which may be public or private where bags and baggage containing narcotic drugs are lying. The object and purpose of such search is also discussed in the said judgment and the relevant observations are as under:- “4. … This provision obviously is introduced to avoid any harm to the innocent persons and to avoid raising of allegation of planting or fabrication by the prosecuting authorities. It lays down that if the person to be searched so requires, the officer who is about to search

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him under the provisions of Sections 41 to 43, shall take such person without any unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest magistrate. One of the questions raised is that what meaning is to be given to the words “if the person to be searched so requires”. Do they cast a duty upon the officer about to make the search to intimate such person that if he so requires he would be taken before the nearest Gazetted Officer or the nearest magistrate for the purpose of making search in their presence or it is for such person to make such a request on his own without being informed by the officer? …” In paragraph 5, the Court observed:- “5. … But when a police officer carrying on the investigation including search, seizure or arrest empowered under the provisions of the CrPC comes across a person being in possession of the narcotic drugs or psychotropic substances then two aspects will arise. If he happens to be one of those empowered officers under the NDPS Act also then he must follow thereafter the provisions of the NDPS Act and continue the investigation as provided thereunder. If on the other hand, he is not empowered then the obvious thing he should do is that he must inform the empowered officer under the NDPS Act who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. But at this stage the question of resorting to Section 50 and informing the accused person that if he so wants, he would be taken to a Gazetted Officer and taking to Gazetted Officer thus would not arise because by then search would have been over. As laid down in Section 50 the steps contemplated thereunder namely informing and taking him to the Gazetted Officer should be done before the search. When the search is already over in the usual course of investigation under the provisions of CrPC then the question of complying with section 50 would not arise.”

39Copy pinpoint39. Thereafter the Court considered the provisions of Sections 100 and 165 resply of the CrPC 1973 which deal with the search of the premises and the person. Section 100(1) deals with the search of a closed place and Section 100(3) deals with search of a person, whereas Section 165 deals with search by a police officer from any place. The Court observed that if there

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is non-compliance of Section 100 or 165 that itself cannot be a ground for rejecting the prosecution case outright. The effect of such non-compliance will have a bearing on appreciation of evidence of official witnesses and other material depending upon the facts and circumstances of each case. In carrying out such searches if they come across any substance covered by the NDPS Act, the question of complying with the provisions of the said Act including Section 50 at that stage would not arise. When the contraband seized during such arrest or search attracts the provisions of the NDPS Act, then from that stage the other relevant provisions of the NDPS Act would be attracted and further steps have to be taken in accordance with the provisions of the said Act.

40Copy pinpoint40. Thereafter, the Court considered whether the failure to comply with the conditions laid down in Section 50 of the NDPS Act by the empowered or authorised officer while conducting the search affects the prosecution case, and held as under:- “18. … It is obvious that the legislature while keeping in view the menace of illicit drug trafficking deemed it fit to provide for corresponding safeguards to check the misuse of power thus conferred so that any harm to innocent persons is avoided and to minimise the allegations of planting or fabricating by the prosecution, Section 50 is enacted.” The Court thereafter held as under:- “20. …When such is the importance of a right given to an accused person in custody in general, the right by way of safeguard conferred under Section 50 in the context is all the more important and valuable. Therefore it is to be taken as an imperative requirement on the part of the officer intending to search to inform the person to be searched of his right that if he so chooses, he will be searched in the presence of a Gazetted Officer or a Magistrate. Thus the provisions of Section 50 are mandatory.”

41Copy pinpoint41. When we refer to the decision of this Court in Balbir Singh (supra), what has been held therein as a broad principle in para 25(1), is as under:- “25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:

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(1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offences as provided under the provisions of CrPC and when such search is completed at that stage Section 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug or psychotropic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act.”

42Copy pinpoint42. The said principle clearly postulates a situation where a police officer in the normal course of investigation of an offence or suspected offences as provided under the provisions of CrPC 1973 and in the course of such investigation when a search is completed and in that process happens to stumble upon possession of a narcotic drug or psychotropic substance, the question of invoking Section 50 would not arise. When that principle is examined carefully one can easily understand that without any prior information as to possession of any narcotic drug and psychotropic substance, a police officer might have held a search in the course of discharge of his duties as contemplated under the provisions of CrPC 1973 and, therefore, it would be well-neigh impossible to state that even under such a situation, the application of Section 50 would get attracted. The facts involved in Balbir Singh (supra) would indicate that the police officer effected the arrest, search and seizure on reasonable suspicion that a cognizable offence was committed and not based on any prior information that any offence punishable under the NDPS Act was committed and, therefore, it was argued that complying with the provisions of the NDPS Act at the time of the said arrest, search and seizure did not arise inasmuch as such arrest, search and seizure was substantially in accordance with the provisions of CrPC 1973. It was, therefore, contended that such arrest, search and seizure cannot be declared as illegal. While examining the contention in the said background, Principle 1 in para 25

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referred to above came to be rendered. (See : Gurjant Singh v. State of Punjab (2014) 13 SCC 603).

43Copy pinpoint43. It all started with the Constitution Bench decision of this Court in the case of State of Punjab v. Baldev Singh, (1999) 6 SCC 172. The Constitution Bench had to be constituted in view of the cleavage of opinion expressed by this Court in the State of Punjab v. Balbir Singh reported in (1994) 3 SCC 299, Ali Mustaffa Abdul Rahman Moosa v. State of Kerala reported in (1994) 6 SCC 569, and Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat reported in (1995) 3 SCC 610.

44Copy pinpoint44. This Court in Baldev Singh (supra) held that Section 50 would come into play only in cases where search of a person is conducted under the NDPS Act as contemplated under Section 42. Where there is no search of a person under the NDPS Act, Section 50 would have no application. However, where in the course of a general search being conducted under the CrPC, 1973 in connection with any offence or suspected offence except one under the NDPS Act, there is recovery of any contraband, the provisions of the NDPS Act shall forthwith apply in such cases also. The relevant observations made are reproduced below:- “12.On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.

13. Vide Section 51, the provisions of the Code of Criminal Procedure, 1973 shall apply, insofar as they are not inconsistent with the provisions of the NDPS Act, to all warrants issued and arrests, searches and seizures made under the NDPS Act. Thus, the NDPS Act, 1985 after incorporating the broad principles regarding search, seizure and arrest etc. in Sections 41, 42, 43, 49 and 50 has laid down in Section 51 that the provisions of the Code of Criminal Procedure shall apply insofar as they are not inconsistent with the provisions of the NDPS Act. The expression “insofar as they are not inconsistent with the provisions of

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this Act” occurring in Section 51 of the NDPS Act is of significance. This expression implies that the provisions of the Code of Criminal Procedure relating to search, seizure or arrest apply to search, seizure and arrest under the NDPS Act also except to the extent they are “inconsistent with the provisions of the Act”. Thus, while conducting search and seizure, in addition to the safeguards provided under the Code of Criminal Procedure, the safeguards provided under the NDPS Act are also required to be followed. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the investigating officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the female concerned should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect the credibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity.

14. The provisions of Sections 100 and 165 CrPC are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drug or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered

RANJAN KUMAR CHADHA v. 317 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. In Balbir Singh case after referring to a number of judgments, the Bench opined that failure to comply with the provisions of CrPC in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view.”

45Copy pinpoint45. This Court in Baldev Singh (supra) further observed that the conditions prescribed in Section 50 are an obligation imposed upon the empowered officer and the same must be duly complied with before conducting any search of a person. The relevant observations are reproduced hereunder:- “24. … There is, thus, unanimity of judicial pronouncements to the effect that 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 a right to require his search being conducted in the presence of a gazetted officer or a Magistrate and that the failure to inform the suspect of his right, would render the search illegal because the suspect would not be able to avail of the protection which is inbuilt in Section 50. Similarly, if the person concerned requires, on being so informed by the empowered officer or otherwise, that his search be conducted in the presence of a gazetted officer or a Magistrate, the empowered officer is obliged to do so and failure on his part to do so would also render the search illegal and the conviction and sentence of the accused bad.” (Emphasis supplied)

46Copy pinpoint46. This Court in Baldev Singh (supra) also explained the purpose behind the safeguards engraved under Section 50 and the reason as to why the right of the suspect to have his search conducted before a Gazetted Officer or Magistrate ought to be zealously guarded by the courts. It was held as under:-

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“25. To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with.

26. The safeguard or protection to be searched in the presence of a gazetted officer or a Magistrate has been incorporated in Section 50 to ensure that persons are only searched with a good cause and also with a view to maintain the veracity of evidence derived from such search. We have already noticed that severe punishments have been provided under the Act for mere possession of illicit drugs and narcotic substances. Personal search, more particularly for offences under the NDPS Act, are critical means of obtaining evidence of possession and it is, therefore, necessary that the safeguards provided in Section 50

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of the Act are observed scrupulously. The duty to inform the suspect of his right to be searched in the presence of a gazetted officer or a Magistrate is a necessary sequence for enabling the person concerned to exercise that right under Section 50 because after Maneka Gandhi v. Union of India it is no longer permissible to contend that the right to personal liberty can be curtailed even temporarily, by a procedure which is not “reasonable, fair and just” and when a statute itself provides for a “just” procedure, it must be honoured. Conducting a search under Section 50, without intimating to the suspect that he has a right to be searched before a gazetted officer or a Magistrate, would be violative of the “reasonable, fair and just procedure” and the safeguard contained in Section 50 would be rendered illusory, otiose and meaningless. Procedure based on systematic and unconscionable violation of law by the officials responsible for the enforcement of law, cannot be considered to be a “fair”, just or reasonable procedure. We are not persuaded to agree that reading into Section 50, the existence of a duty on the part of the empowered officer, to intimate to the suspect, about the existence of his right to be searched in the presence of a gazetted officer or a Magistrate, if he so requires, would place any premium on ignorance of the law. The argument loses sight of a clear distinction between ignorance of the law and ignorance of the right to a “reasonable, fair and just procedure”. x x x x

28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right “that if he requires” to be searched in the presence of a gazetted officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose — to protect a person against false accusation

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and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.” (Emphasis supplied)

47Copy pinpoint47. As to what would be the consequences of a recovery made in violation of Section 50, it was observed in Baldev Singh (supra) that it would have the effect of rendering such incriminating material inadmissible in evidence and hence, cannot be relied upon to hold the accused guilty for being found to be in unlawful possession of any contraband. The Court further held that it would not impede the prosecution from relying upon recovery of any other incriminating article in any other independent proceedings. It was further held that the burden of proving that the conditions of Section 50 were complied with, would lie upon the prosecution to establish. The relevant observations are being reproduced hereunder:- “32. However, the question whether the provisions of Section 50 are mandatory or directory and, if mandatory, to what extent and the consequences of non-compliance with it does not strictly speaking arise in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched. Therefore, without expressing any opinion as to whether the provisions of Section 50 are mandatory or not, but bearing in mind the purpose for which the safeguard has been made, we hold that the provisions of Section 50 of the Act implicitly make it imperative and obligatory and cast a duty of the investigating officer (empowered officer) to ensure that

RANJAN KUMAR CHADHA v. 321 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

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 article 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. 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. The protection provided in the section to an accused to be intimated that he has the right to have his personal search conducted before a gazetted officer or a Magistrate, if he so requires, is sacrosanct and indefeasible — it cannot be disregarded by the prosecution except at its own peril.

33. The question whether or not the safeguards provided in Section 50 were observed would have, however, to be determined by the court on the basis of the evidence led at the trial and the 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 in that section were complied with, it would not be advisable to cut short a criminal trial. x x x x

45. … Prosecution cannot be permitted to take advantage of its own wrong. Conducting a fair trial for those who are accused of a criminal offence is the cornerstone of our democratic society. A conviction resulting from an unfair trial is contrary to our concept of justice. Conducting a fair trial is both for the benefit of the society as well as for an accused and cannot be abandoned. While considering the aspect of fair trial, the nature of the evidence obtained and the nature of the safeguard violated are both relevant factors. Courts cannot

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allow admission of evidence against an accused, where the court is satisfied that the evidence had been obtained by a conduct of which the prosecution ought not to take advantage particularly when that conduct had caused prejudice to the accused. If after careful consideration of the material on record it is found by the court that the admission of evidence collected in search conducted in violation of Section 50 would render the trial unfair then that evidence must be excluded. In R. v. Collins, (1987) 1 SCR 265 (Canada), the Supreme Court of Canada speaking through Lamer, J. (as his Lordship, Chief Justice of the Supreme Court of Canada then was) opined that the use of evidence collected in violation of the Charter rights of an accused would render a trial unfair and the evidence inadmissible. … x x x x

55. We, therefore, hold 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 by itself be used as admissible evidence of proof of unlawful possession of the contraband on the accused. Any other material/article recovered during that search may, however, be relied upon by the prosecution in other/independent proceedings against an accused notwithstanding the recovery of that material during an illegal search and its admissibility would depend upon the relevancy of that material and the facts and circumstances of that case.” (Emphasis supplied)

48Copy pinpoint48. This Court ultimately summed up its findings with the following ten conclusions reproduced below:- “57. On the basis of the reasoning and discussion above, the following conclusions arise: (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;

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(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; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair. (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 evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or

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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 concerned person 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; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) That the judgment in Pooran Mal v. Director of Inspection (Investigation), (1974) 1 SCC 345, cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa’s case correctly interprets and distinguishes the judgment in Pooran Mal’s case and the broad observations made in State of H.P. v. Pirthi Chand, (1996) 2 SCC 37, and State of Punjab v. Jasbir Singh, (1996) 1 SCC 288, case are

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not in tune with the correct exposition of law as laid down in Pooran Mal’s case.” (Emphasis supplied)

49Copy pinpoint49. Thus, the Constitutional Bench in express terms laid down that although the non-compliance of Section 50 may not vitiate the trial yet would render the recovery of the contraband doubtful and may vitiate the conviction of the accused. The emphasis laid by the Court is on illicit articles seized from the “person of an accused” during the search conducted in violation of safeguards provided in Section 50 of the NDPS Act. In other words, according to Baldev Singh (supra), the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying. When Section 50 could be said to be complied with?

50Copy pinpoint50. This Court in a number of cases has dealt with this very aspect and laid down the principles with respect to when Section 50 be said to be complied with. This Court in Manohar Lal v. State of Rajasthan reported in (1996) 11 SCC 391, held that Section 50 only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or Magistrate. The relevant observations made therein are reproduced below:- “2. … The provision only requires the option to be given to the accused to say whether he would like to be searched in the presence of a Gazetted Officer or a Magistrate; and on exercise of that option by the accused, it is for the officer concerned to have the search made in the presence of the nearest Gazetted Officer or the nearest Magistrate whosoever is conveniently available for the purpose in order to avoid undue delay in completion of that exercise. 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 be exercised by the officer making the search and not by the accused.” (Emphasis supplied)

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51Copy pinpoint51. In Joseph Fernandez v. State of Goa reported in (2001) 1 SCC 707, this Court held that only substantial compliance of Section 50 is required, and informing the suspect that if he wishes he may be searched in presence of a Gazetted Officer or Magistrate without the use of the word “right” would not amount to breach of Section 50. The relevant observations made therein are reproduced below:- “2. Learned counsel tried to highlight a point that Section 50 of the Narcotic Drugs and Psychotropic Substances Act has not strictly been complied with by PW 8, the officer who conducted the search. According to the learned counsel for the appellant the searching officer should have told the person who was subjected to search that he had a right to be searched in the presence of a gazetted officer or a Magistrate. In this case PW 8 has deposed that she told the appellant that if he wished he could be searched in the presence of the gazetted officer or a Magistrate to which the appellant had not favourably reciprocated. According to us the said offer is a communication about the information that the appellant has a right to be searched so. It must be remembered that the searching officer had only Section 50 of the Act then in mind unaided by the interpretation placed on it by the Constitution Bench. Even then the searching officer informed him that “if you wish you may be searched in the presence of a gazetted officer or a Magistrate”. This according to us is in substantial compliance with the requirement of Section 50. We do not agree with the contention that there was non-compliance with the mandatory provision contained in Section 50 of the Act.”

52Copy pinpoint52. In Prabha Shankar Dubey v. State of M.P. reported in (2004) 2 SCC 56, this Court held that for the purpose of due compliance of Section 50 there is no specific word or form in which the communication is to be made and it is not necessary to use the word “right”, as the person to be searched is only required to be made aware that he has a choice of having his search conducted before a Gazetted Officer or Magistrate. The relevant observations made in it are reproduced hereunder:- “11. ... 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

RANJAN KUMAR CHADHA v. 327 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

“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.”

53Copy pinpoint53. However, a five-Judge Bench of this Court in Vijaysinh Chandubha Jadeja v. State of Gujarat reported in (2011) 1 SCC 609, overruled the decisions in Prabha Shankar Dubey (supra) and Joseph Fernandez (supra) and disapproved the concept of “substantial compliance” and held that the obligation under Section 50 is mandatory and the failure to comply with the same would render the recovery of illicit article suspicious and vitiate the conviction, more particularly if the basis of conviction is the recovery of illicit article from the accused during search. The person to be searched is to be specifically informed that he has a right to be searched in presence of a Gazetted Officer or Magistrate. The Court also held that while it is the choice of police to take the suspect either before a Gazetted Officer or Magistrate, an endeavour should be made to take him before Magistrate. The relevant observations made therein are reproduced below:- “29. In view of the foregoing discussion, we are of the firm opinion that the object with which the 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 insofar 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 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. x x x x

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31. 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 and Prabha Shankar Dubey 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 case. 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.

32. 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.” (Emphasis supplied)

54Copy pinpoint54. In Parmanand (supra) this Court held that Section 50 confers a right upon the accused to be searched either by a Gazetted Officer or Magistrate, and as such while informing the suspect of its right, only the aforesaid two options can be provided. Section 50 could be said to be violated where a third option is also offered, be it that of being searched by the superintendent of police or by the police officer himself.

55Copy pinpoint55. Although a superintendent of police is a Gazetted Officer, yet the reason why this court in Parmanand (supra) held the third option to be bad in law is because, first, in that case the Superintendent of Police was a part of the raiding party and as such was not an independent witness and secondly, as discussed, Section 50 provides for only two options, either a Magistrate or Gazetted Officer.

56Copy pinpoint56. Thus, the person intended to be searched under Section 50 must be told in clear and unambiguous words that he has a right to have the search conducted in presence of either a Gazetted Officer or Magistrate. The person concerned must be made aware of his right and must be given only two options that have been provided under the section.

RANJAN KUMAR CHADHA v. 329 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

57Copy pinpoint57. This Court in Parmanand (supra) has also held that a joint communication of the right under Section 50 would be bad in law. The right under Section 50 could be said to be violated where in a case of multiple persons intended to be searched, only a joint communication has been given or where the right has been exercised or declined by one of them on behalf of the other. While, a written communication of the right is not required, the right has to be communicated in clear words to each person individually whose search is intended to be conducted, and no person can either waive or exercise this right at the behest of another. Thus, in case of multiple persons, each of them must be individually communicated of their right and must exercise or waive the same in their own individual capacity.

58Copy pinpoint58. We also looked into the decision of this Court in Arif Khan alias Agha Khan v. State of Uttarakhand reported in (2018) 18 SCC 380, wherein it was held that even where the accused after being informed of his right under Section 50, chooses to decline the same, his search by the police must be conducted in presence of either a Gazetted Officer or Magistrate. The relevant observations are as under:- “4. … On apprehending the accused, he was informed by the police personnel that he has a legal right to be searched in the presence of a gazetted officer or a Magistrate to which the accused replied that he has faith in the raiding police party and consented to be searched by them.

5. The raiding police party accordingly obtained his consent in writing to be searched by the raiding police party. The raiding police party then searched the accused which resulted in seizure of “charas” weighing around 2.5 kg in quantity from his body. x x x x

24. We do not agree to this finding of the two courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband “charas” does not satisfy the mandatory requirements of Section 50 as held by this Court in Vijaysinh Chandubha Jadeja. This we say for the following reasons: 24.1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or gazetted officer.

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24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband “charas” was not made from the appellant in the presence of any Magistrate or gazetted officer. 24.3. Third, it is also an admitted fact that none of the police officials of the raiding party, who recovered the contraband “charas” from him, was the gazetted officer and nor they could be and, therefore, they were not empowered to make search and recovery from the appellant of the contraband “charas” as provided under Section 50 of the NDPS Act except in the presence of either a Magistrate or a gazetted officer. 24.4. Fourth, in order to make the search and recovery of the contraband articles from the body of the suspect, the search and recovery has to be in conformity with the requirements of Section 50 of the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search and recovery was made from the appellant in the presence of a Magistrate or a gazetted officer.

25. Though, the prosecution examined as many as five police officials (PW 1 to PW 5) of the raiding police party but none of them deposed that the search/recovery was made in presence of any Magistrate or a gazetted officer.

26. For the aforementioned reasons, we are of the considered opinion that the prosecution was not able to prove that the search and recovery of the contraband (charas) made from the appellant was in accordance with the procedure prescribed under Section 50 of the NDPS Act. Since the non-compliance of the mandatory procedure prescribed under Section 50 of the NDPS Act is fatal to the prosecution case and, in this case, we have found that the prosecution has failed to prove the compliance as required in law, the appellant is entitled to claim its benefit to seek his acquittal.”

59Copy pinpoint59. However, in our opinion, the observations made in Arif Khan (supra) are in direct conflict with the Constitution Bench decision of Baldev Singh (supra). It appears that the attention of the learned Judges while rendering the decision of Arif Khan (supra) was seemingly not invited to the words “if the person to be searched so requires” used in section 50.

RANJAN KUMAR CHADHA v. 331 STATE OF HIMACHAL PRADESH [J. B. PARDIWALA, J.]

60Copy pinpoint60. Section 50 of the NDPS Act only goes so far as to prescribe an obligation onto the police officer to inform the suspect of his right to have his search conducted either in the presence of a Gazetted Officer or Magistrate. Whether or not the search should be conducted in the presence of a Gazetted Officer or Magistrate ultimately depends on the exercise of such right as provided under Section 50. In the event the suspect declines this right, there is no further obligation to have his search conducted in the presence of a Gazetted Officer or Magistrate, and in such a situation the empowered police officer can proceed to conduct the search of the person himself. To read Section 50 otherwise would render the very purpose of informing the suspect of his right a redundant exercise. We are of the view that the decision of this Court in Arif Khan (supra) cannot be said to be an authority for the proposition that notwithstanding the person proposed to be searched has, after being duly apprised of his right to be searched before a Gazetted Officer or Magistrate, but has expressly waived this right in clear and unequivocal terms; it is still mandatory that his search be conducted only before a Gazetted Officer or Magistrate.

61Copy pinpoint61. A plain reading of the extracted paragraphs of Arif Khan (supra) referred to above would indicate that this Court while following the ratio of the decision of the Constitution Bench in Vijaysinh Chandubha Jadeja (supra) held that the same has settled the position of law in this behalf to the effect that, whilst it is imperative on the part of the empowered officer to apprise the person of his right to be searched only before a Gazetted Officer or Magistrate; and this requires strict compliance; this Court simultaneously proceeded to reiterate that in Vijaysinh Chandubha Jadeja (supra) “it is ruled that the suspect person may or may not choose to exercise the right provided to him under Section 50 of the NDPS Act”.

62Copy pinpoint62. There is no requirement to conduct the search of the person, suspected to be in possession of a narcotic drug or a psychotropic substance, only in the presence of a Gazetted Officer or Magistrate, if the person proposed to be searched, after being apprised by the empowered officer of his right under Section 50 of the NDPS Act to be searched before a Gazetted Officer or Magistate categorically waives such right by electing to be searched by the empowered officer. The words “if such person so requires”, as used in Section 50(1) of the NDPS Act would be rendered otiose, if the