2005 (4) TMI 557 - SC - Customs

Whether there was non-compliance with the mandatory requirements of Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985? Held that - The powers to detain, search and arrest have been conferred by Sections 41(2), 42 and 43. Under Section 42(1)(d) the officer authorized may between sunrise and sunset detain and search and if he thinks proper arrest any person who he has reason to believe has committed an offence punishable under Chapter IV relating to the notified drug or substance. The question of arrest comes after a person is detained and searched and thereafter if the officer thinks proper arrest can be effected on the foundation that the officer has reason to believe that the person so detained and searched has committed an offence punishable under Chapter IV. It cannot be said that the person accompanying the officer authorized cannot say No to the proposed search even if he sees no reasonable ground for search. It is the legislative trust imposed on a superior officer to act fairly and reasonably. Therefore, it is for the accused to establish prejudice which is to be done at the trial. On the facts of the case, actually these questions do not arise. The object of requiring the search to be conducted if so required before the specified Gazetted officer or nearest Magistrate is to ensure that the officers who are charged with a duty of conducting search conduct them properly and do no harm or wrong such as planting of an offending drug by any interested party and preventing fabrication of any false evidence. The provision in essence intends to act as a safeguard against vexatious search, unfair dealings and to protect and safeguard the interest of innocent persons. In order to avoid arrest and nip the investigation in the bud thereby protecting the liberty of a person, a statutory safeguard is provided in sub- section (3) of Section 50. Power has been vested in the Magistrate or the Gazetted Officer before whom the concerned person is brought on his requisition made under sub-section (2) to forthwith discharge the person without formal proceedings on his satisfaction that there is no reasonable ground for search. As a consequence, search takes place only when he declines to discharge such a person. Firstly, as noted above PW-3 arrived at the spot after the person was detained and search was proposed to be done by the officer authorized. Secondly, the respondent-accused was given the option as to whether he would like to be searched in the presence of PW-3 or the nearest magistrate. He exercised his option to be searched in the presence of PW-3. High Court s conclusions are clearly untenable. The inevitable result is that the High Court s judgment is indefensible and is set aside and that of the trial Court is restored. The accused shall surrender to custody forthwith to serve the remainder of the sentence. Appeal is allowed.

Issues Involved:
1. Non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. Whether the Deputy Superintendent of Police (PW-3) was a member of the raiding party.
3. Validity of the search and seizure process.
4. Impact of the alleged procedural lapses on the conviction and sentence.

Detailed Analysis:

1. Non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The primary issue was whether the mandatory requirements of Section 50 of the Act were complied with during the search of the accused. The High Court held that the search was not in consonance with Section 50 because the Deputy Superintendent of Police (PW-3), who conducted the search, was part of the raiding party. The Supreme Court, however, clarified that Section 50 requires informing the accused of their right to be searched in the presence of a Gazetted Officer or Magistrate. The Court emphasized that the substance of the communication, not its form, is crucial. The accused was informed of his rights and consented to be searched in the presence of PW-3, a Gazetted Officer, thus fulfilling the requirements of Section 50.

2. Whether the Deputy Superintendent of Police (PW-3) was a member of the raiding party:
The High Court's judgment was based on the assumption that PW-3 was a member of the raiding party, which would invalidate the search. The Supreme Court found this assumption incorrect, noting that PW-3 arrived at the scene after the accused was detained. The Court held that the presence of a Gazetted Officer during the search, even if he arrived later, does not violate Section 50. The Court pointed out that the choice of the Gazetted Officer or Magistrate lies with the officer conducting the search, not the accused.

3. Validity of the search and seizure process:
The Supreme Court reiterated that Section 50 applies to personal searches and not to searches of vehicles, containers, or premises. The Court referenced previous judgments, including Kalema Tumba v. State of Maharashtra, State of Punjab v. Baldev Singh, and Gurbax Singh v. State of Haryana, to support this interpretation. The Court found that the accused was properly informed of his rights and that the search conducted in the presence of PW-3 was valid. The Court dismissed the High Court's reasoning that the search was invalid due to PW-3's alleged involvement in the raiding party.

4. Impact of the alleged procedural lapses on the conviction and sentence:
The Supreme Court emphasized that procedural safeguards in Section 50 are designed to ensure fairness and transparency in the search process. The Court held that any non-compliance with Section 50 would render the recovery of illicit articles suspect and could vitiate the conviction and sentence. However, in this case, the Court found no procedural lapses. The accused was informed of his rights, and the search was conducted in the presence of a Gazetted Officer, as required. The Court concluded that the High Court's judgment was untenable and restored the trial court's decision, thereby upholding the conviction and sentence of the accused.

Conclusion:
The Supreme Court set aside the High Court's judgment, holding that the search conducted in the presence of the Deputy Superintendent of Police (PW-3) was in compliance with Section 50 of the Act. The accused was properly informed of his rights, and the procedural requirements were met. The Court restored the trial court's judgment, and the accused was ordered to surrender to custody to serve the remainder of his sentence. The appeal was allowed.

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