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TMI Blog2014 (1) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate or a Gazetted Officer and, therefore, no such person should be called. 2. Since the appellant pleaded not guilty to the charged framed against him, the prosecution examined as many as eight witnesses. One witness was examined in defence. 3. The complainant Inspector Ishwar Singh came in the witness box as PW1 and inter alia stated that he informed the appellant about his legal right to be searched in presence of a Gazetted Officer or a Magistrate, but he refused to exercise his right. This witness also proved the notice Ex.PW1/A given to the appellant under Section 50 of the Act. 4. The learned trial Judge vide the impugned judgment and order dated 5.4.2010 and 13.4.2010 respectively convicted the appellant under Section 20 of the Act and sentenced him to undergo RI for a period of ten years and to pay a fine of Rs. One lac and in default of payment of fine to undergo RI for two months. Being aggrieved, the appellant is before this Court by way of this appeal. 5. The only contention made by the learned counsel for the appellant is that since the notice purporting to be under Section 50 of the Act was given to the appellant, the said notice ought to have complied wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his duties of investigation in accordance with the provisions of Section 50 of the Act. While discharging the onus of Section 50 of the Act, the prosecution has to establish that information regarding the existence of such a right had been given to the suspect. If such information is incomplete and ambiguous, then it cannot be construed to satisfy the requirements of Section 50 of the Act. Non-compliance of the provisions of Section 50 of the Act would cause prejudice to the accused, and, therefore, amount to the denial of a fair trial. To secure a conviction under Section 21 of the Act, the possession of the illicit article is a sine qua non. Such contraband article should be recovered in accordance with the provisions of Section 50 of the Act, otherwise, the recovery itself shall stand vitiated in law. Whether the provisions of Section 50 of the Act were complied with or not, would normally be a matter to be determined on the basis of the evidence produced by the prosecution. An illegal search cannot entitle the prosecution to raise a presumption of validity of evidence under Section 50 of the Act. As is obvious from the bare language of Ex.PW-6/A, the accused was not made aware ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Firstly, in the present case, there is no public witness to Ex.PW-6/A; and the recovery thereof; secondly, even the evidence of all the witnesses, who are police officers, does not improve the case of the prosecution. The defect in Ex.PW-6/A is incurable and incapable of being construed as compliance with the requirements of Section 50 of the Act on the strength of ocular statement. 8. It is contended by the learned APP for the State that since no notice under Section 50 of the Act was required to be given before searching the trunk being carried by the appellant, the defect in the notice given to him would not render the recovery illegal. His contention in other words is that if the recovery, without giving notice under Section 50 of the Act is illegal, any defect in the notice cannot render the recovery to be illegal. In Gurjant Singh @ Janta versus State of Punjab [2013 (13) Scale 295], the case of the prosecution was that some police officers were present at T-Point in the area of Village Ugrahan in connection with Nakabandi when a tractor trolley was got stopped and was checked. Three gunny bags were found lying inside the trolley. The police officer informed the appellant be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch of gunny bags the necessity of affording an opportunity to the appellant to conduct the search in the presence of the Gazetted Officer or a Magistrate was imperative and, therefore, such search had to be necessarily conducted in accordance with the provisions of Section 50 of the Act. It was held that in these circumstances, the conclusion of the Trial Court holding that Section 42 and 50 were not applicable was a total misunderstanding of the legal provisions and in light of the notice placed before it and consequently the conclusion arrived at for convicting the appellant was wholly unjustified. During the course of judgment, the Apex Court highlighted the importance of notice under Section 50 of the Act and held as under:- "It will have to be stated that such compliance of the requirement under Section50 of holding of a search and seizure in the presence of Gazetted officer or a Magistrate, cannot be an empty formality. In other words, the offer to the person to be searched in the presence of a Gazetted officer or a Magistrate, should really serve the purpose of ensuring that there was every bona fide effort taken by the prosecution to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by police party, if you desire, you may search the police party." The contention raised by the appellant before this Court was that no proper notice under Section 50 of the Act was given to him since he was only given an offer or option which would not meet the mandatory requirement of Section 50 of the Act. Relying upon the decision Gurjant Singh @ Janta (supra) a Coordinate Bench of this Court held that since a mere offer was made to the appellant that in case he so desired his search could be conducted in the presence of a Gazetted Officer or a Magistrate, that did not satisfy the mandatory ingredient of Section 50 of the Act. 10 The facts of this case are identical to the facts in Gurjant Singh @ Janta (supra). In Gurjant Singh @ Janta (supra) the police officers were present at the „T‟ Point in connection with nakabandi, whereas in the case before this Court the police officers were present at the bus stand for the purpose of checking the buses passing from there. In Gurjant Singh @ Janta (supra), the case of the prosecution was that poppy was found in gunny bags lying in the tractor being driven by the appellant.In the case before this Court, the case of the pros ..... X X X X Extracts X X X X X X X X Extracts X X X X
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