2000 (8) TMI 1096 - SC - Customs

Whether when a search is made by a gazetted officer, is it obligatory for the prosecution to inform the accused of his right to be searched before a gazetted officer or before a Magistrate, as provided under Section 50 of the Act? Held that - The submission of Mr. M.N. Shroff, appearing for the State-respondent, that the requirement of compliance of Section 50 will not arise, if a search is going to be made by an empowered officer, who happens to be a gazetted officer, is devoid of any substance inasmuch as this Court in no uncertain terms has held 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. In view of the aforesaid position of law and in view of the evidence of PW1., as indicated in the earlier part of this judgment, the accused himself having wanted to be searched before a gazetted officer or a Magistrate and the same having been denied, there cannot be any doubt that failure on the part of the prosecution in complying with the provisions of Section 50, renders the recovery of illicit article suspect and vitiates the conviction and sentence of the accused, since the conviction in the case in hand is based solely on the alleged possession of Charas, which was recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. In the aforesaid circumstances, the conviction and sentence is set aside and the accused be set at liberty forthwith, unless required in any other case. Fine amount, if has been paid, may be refunded to the accused. Criminal Appeal is accordingly allowed.

Summary

Issues Involved:
1. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act).
2. Validity of the search and seizure process.
3. Legality of the conviction and sentence based on the recovered illicit substance.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The central issue in this case was whether the mandatory requirements of Section 50 of the NDPS Act were complied with during the search of the accused. Section 50 mandates that when an officer is about to search a person, the person must be informed of their right to be searched before a gazetted officer or a Magistrate. The accused argued that despite requesting to be taken to a Magistrate for the search, the police did not comply, thereby violating Section 50. The prosecution contended that since the search was conducted by a gazetted officer, compliance with Section 50 was not necessary. However, the court held that irrespective of whether the search is conducted by an empowered officer or an authorised officer, the provisions of Section 50 must be complied with. The failure to inform the accused of their right to be searched before a gazetted officer or a Magistrate constitutes an infraction of Section 50, thereby vitiating the conviction.

2. Validity of the Search and Seizure Process:
The search and seizure process was scrutinized under the lens of Sections 41, 42, and 50 of the NDPS Act. Section 41 empowers certain officers to issue warrants for arrest or search, while Section 42 allows officers to conduct searches without a warrant under specific conditions. Section 50 provides the procedural safeguard for the person being searched. The court emphasized that for the sanctity of the search, compliance with Section 50 is mandatory, ensuring the accused is informed of their right to be searched before a gazetted officer or a Magistrate. The court noted that the accused had explicitly requested to be searched before a Magistrate, which was denied, thereby rendering the search process invalid.

3. Legality of the Conviction and Sentence:
The conviction and sentence of the accused were based solely on the possession of 9 grams of Charas recovered during the search. Given the non-compliance with Section 50, the court held that the recovery of the illicit substance was suspect. The Constitution Bench in the case of State of Punjab vs. Baldev Singh had established that failure to inform the accused of their right under Section 50 renders the search illegal and vitiates the conviction based on such recovery. Consequently, the court set aside the conviction and sentence, ordering the release of the accused and refund of the fine amount if already paid.

Conclusion:
The court concluded that the failure to comply with the mandatory provisions of Section 50 of the NDPS Act, specifically the duty to inform the accused of their right to be searched before a gazetted officer or a Magistrate, vitiated the entire search process. This non-compliance rendered the recovery of the illicit substance suspect, leading to the setting aside of the conviction and sentence. The accused was ordered to be released forthwith, and any fine paid was to be refunded.