2014 (3) TMI 54 - SC - Customs

Search and seizure - narcotic drugs being opium - Issuance of Joint Notice or Individual show cause notice - Offences under Section 8 read with Section 18 and under Section 8 read with Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 - whether Section 50 of the NDPS Act was complied with or not. - Held that - the conviction is solely based on recovery of opium from the bag of respondent No.1 - Parmanand. No opium was found on his person. If merely a bag carried by a person is searched without there being any search of his person, Section 50 of the NDPS Act will have no application. But if the bag carried by him is searched and his person is also searched, Section 50 of the NDPS Act will have application. In this case, respondent No.1 Parmanand s bag was searched. From the bag, opium was recovered. His personal search was also carried out. Personal search of respondent No.2 Surajmal was also conducted. Therefore, section 50 of the NDPS Act will have application. A joint communication of the right available under Section 50(1) of the NDPS Act to the accused would frustrate the very purport of Section 50. Communication of the said right to the person who is about to be searched is not an empty formality. It has a purpose. Most of the offences under the NDPS Act carry stringent punishment and, therefore, the prescribed procedure has to be meticulously followed. The idea behind taking an accused to a nearest Magistrate or a nearest gazetted officer, if he so requires, is to give him a chance of being searched in the presence of an independent officer. Therefore, it was improper for PW-10 SI Qureshi to tell the respondents that a third alternative was available and that they could be searched before PW-5 J.S. Negi, the Superintendent, who was part of the raiding party. PW-5 J.S. Negi cannot be called an independent officer. The search conducted by PW-10 SI Qureshi is vitiated. We have, therefore, no hesitation in concluding that breach of Section 50(1) of the NDPS Act has vitiated the search. The conviction of the respondents was, therefore, illegal. - Decided against the revenue.

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Validity of joint notice under Section 50.
3. Impact of non-compliance with Section 50 on the trial and conviction.
4. Propriety of search conducted by the raiding party.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The primary issue was whether Section 50 of the NDPS Act was complied with during the search and seizure operation. The prosecution argued that the respondents were informed of their right to be searched in the presence of a gazetted officer or a Magistrate, as required under Section 50. However, the defense contended that the notice was a joint notice and not an individual one, thus vitiating the search. The court examined the testimonies of police witnesses PW-5 J.S. Negi, PW-9 SI Meena, and PW-10 SI Qureshi, who confirmed that the respondents were informed of their rights and given a written notice.

2. Validity of Joint Notice under Section 50:
The court scrutinized whether a joint notice suffices under Section 50 of the NDPS Act. The defense argued that each respondent was entitled to an individual notice, and the joint notice given was inadequate. The court agreed, stating that "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." The court emphasized that the communication of this right must be "clear, unambiguous and individual." The joint notice signed by respondent No.2 Surajmal on behalf of both respondents did not meet this requirement, as respondent No.1 Parmanand did not give independent consent.

3. Impact of Non-compliance with Section 50 on the Trial and Conviction:
The court cited several precedents, including State of Punjab v. Balbir Singh, State of Himachal Pradesh v. Pirthi Chand, and State of Punjab v. Baldev Singh, to underline the mandatory nature of Section 50. The court noted that non-compliance with Section 50 would render the recovery of the illicit article suspect and vitiate the conviction. The court observed that in this case, the conviction was solely based on the recovery of opium from the bag of respondent No.1 Parmanand, and no opium was found on his person. The court concluded that the breach of Section 50 vitiated the search and, consequently, the conviction.

4. Propriety of Search Conducted by the Raiding Party:
The court also examined the propriety of the search conducted by the raiding party. The prosecution's case was that the respondents consented to be searched by PW-10 SI Qureshi in the presence of PW-5 J.S. Negi, who was part of the raiding party. The court found this to be a breach of Section 50, which mandates that the search should be conducted in the presence of an independent officer. The court stated, "PW-5 J.S. Negi cannot be called an independent officer," and the provision of a third option to the respondents (being searched before PW-5 J.S. Negi) was improper and vitiated the search.

Conclusion:
The court concluded that the breach of Section 50(1) of the NDPS Act vitiated the search and, consequently, the conviction of the respondents. The High Court's decision to acquit the respondents was upheld, and the appeal by the State was dismissed. The judgment emphasized the importance of strict compliance with procedural safeguards under the NDPS Act to prevent false involvement and ensure fair trial standards.

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