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TMI Blog2013 (10) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as P.W.6, was posted as S.H.O, Police Station, Sunam. According to him he along with A.S.I. Balbir Singh, A.S.I. Massa Singh, H.C. Bhim Sain and other police officers were present at 'T' point in an area of village Ugrahan in connection with Nakabandi. At about 00.15 AM, one tractor trolley was seen coming from the side of village Ugrahan. The head lights of the tractor trolley were on and P.W.6 gave a signal from his torch light and the tractor trolley was stopped by the driver. According to P.W.6, as soon as the tractor trolley was stopped, the driver who tried to slip away was overpowered by P.W.6 and other police officials. The driver stated to have revealed his name as Gurjant Singh @ Janta, the appellant herein. Thereafter, when P.W.6 checked the trolley of the tractor he found three gunny bags lying inside the trolley. P.W.6 informed the appellant that he intended to search the gunny bags as he suspected some incriminating article in the gunny bags. P.W.6 further informed the appellant that, if he so desired, the search could be conducted in the presence of a Gazetted officer or a Magistrate. The appellant stated to have expressed his consent that the search may be condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Magistrate. According to the appellant, he was forcibly taken away from his house and a false case was planted and the claim that search was made in the presence of P.W.3 was not true. It was also contended that P.W.3 was not a regularly promoted D.S.P. but was only an Inspector in the category of Own Rank Pay (ORP). It was contended that since he was only an Inspector and was drawing the pay of an Inspector, while acting as D.S.P, he cannot be held to be a Gazetted Officer. 8. The trial Court, however, took the view that there was no necessity to comply with Section 50 of the NDPS Act and on that basis did not go into the question whether P.W.3 was a competent Gazetted Officer, in order to validate the search stated to have been held in his presence. The trial Court in support of its conclusion relied upon the judgment in the case of State of Punjab vs. Balbir Singh reported in (1994) 3 SCC 299 and found the appellant guilty of the offence alleged against him and convicted him by imposing a sentence of 10 years rigorous imprisonment along with the fine of Rs.1 lac with the default clause to undergo imprisonment for one more year. In the appeal preferred by the appellant before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (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." 14. 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 Cr.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest." 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." 16. If the ratio of the said decision had been properly understood, the flaw committed by the trial Court and as confirmed by the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequently the conclusion arrived at for convicting the appellant was wholly unjustified. 18. In fact, after reaching the said conclusion, all that the trial Court did was to hold that the version of the prosecution witnesses cannot be discarded merely because they were police officers and that the evidence of P.W.3 was sufficient to support the search and recovery of the narcotic substance from the appellant. The trial Court also held that the version of the defence witnesses was not worth mentioning. 19. Unfortunately, the High Court has committed the same errors whilst considering the correctness of the judgment of the trial Court. The High Court being the first appellate Court was required to independently reappraise the entire material, record the conclusions supported by cogent reasons. In our opinion, the High Court failed to exercise its jurisdiction in dismissing the appeal. 20. Before concluding, we wish to refer to the decisions placed before us to state the importance of applying the stipulations contained in Section 50, before holding the search, in order to ensure fair consideration of the offence alleged against an accused under the NDPS Act, before reaching any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle, 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." 22. In Pawan K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zure was not a farce of an exercise in order to falsely implicate a person by unscrupulous police authorities, while on the other hand to prevent an accused from committing an offence of a serious nature against the society, warranting appropriate criminal proceedings to be launched and in the event of establishing such offence, conviction and sentence to be imposed in accordance with law. Therefore, such a dual requirement of law prescribed under Section 50 cannot be dealt with lightly by the Courts dealing with the trial of such offences brought before it. 24. Keeping the above principles in mind, when we examine the manner in which the trial Court dealt with the case of the prosecution as well as the defence pleaded, we find that the trial Court committed a serious flaw in holding that Sections 42 and 50 were not attracted to the case on hand, which we have found in the earlier paragraph was a total misreading of the provision as well as the decision relied upon by it. That apart, when admittedly Section 50 was invoked by offering the presence of a Gazetted officer or a Magistrate to the appellant and at the request of P.W.6, P.W.3, who was stated to be the D.S.P. at that point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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