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TMI Blog2014 (3) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - Criminal Appeal No. 78 of 2005 - - - Dated:- 28-2-2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck material was found. The respondents told him that it was opium and they had brought it from the village. The weight of the opium was 9 Kg. 600 gms. Necessary procedure of drawing samples and sealing was followed. The respondents were arrested. After completion of the investigation, respondent no. 1 Parmanand was charged for offence under Section 8 read with Section 18 of the NDPS Act and respondent No.2 Surajmal was charged for offence under Section 8 read with Section 18 and for offence under Section 8 read with Section 29 of the NDPS Act. The prosecution examined 11 witnesses. The important witnesses are PW-5 J.S. Negi, the Superintendent, PW-9 SI Meena and PW-10 SI Qureshi. The respondents pleaded not guilty to the charge. They contended that the police witnesses had conspired and framed them. The case is false. 3. Learned Special Judge convicted respondent No.1 Parmanand under Section 8 read with Section 18 of the NDPS Act and respondent No.2 Surajmal under Section 8 read with Section 28 of the NDPS Act. They were sentenced for 10 years rigorous imprisonment each and a fine of Rs.10 lakhs each. In default of payment of fine, they were sentenced to undergo rigorous impriso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed by PW-10 SI Qureshi in the presence of PW-5 J.S. Negi, the Superintendent. He signed on the notice in Hindi and put his thumb impression. Respondent No.1 Parmanand did not sign. There is nothing to show that respondent No.1 Parmanand had given independent consent. Search was conducted. PW-10 SI Qureshi did not find anything on the person of the respondents. Later on, he searched the bag which was in the left hand of respondent No.1 - Parmanand. In the bag, he found black colour material which was tested by chemical kit. It was found to be opium. 8. In State of Punjab v. Balbir Singh (1994) 3 SCC 299 , this Court held that Section 50 of the NDPS Act is mandatory and noncompliance thereof would vitiate trial. In State of Himachal Pradesh v. Pirthi Chand (1996) 2 SCC 37, this Court held that breach of Section 50 does not affect the trial. There were divergent views on this aspect and, therefore, a reference was made to the Constitution Bench. Out of the three questions of law, which the Constitution Bench dealt with in State of Punjab v. Baldev Singh (1999) 6 SCC 172, the question which is relevant for the present case is whether it is the mandatory requirement of Section 50 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as a body of a human being. Therefore, it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the NDPS Act. The question is, therefore, whether Section 50 would be applicable to this case because opium was recovered only from the bag carried by respondent No.1 - Parmanand. 10. In Dilip Anr. v. State of Madhya Pradesh (2007) 1 SCC 450 , on the basis of information, search of the person of the accused was conducted. Nothing was found on their person. But on search of the scooter they were riding, opium contained in plastic bag was recovered. This Court held that provisions of Section 50 might not have been required to be complied with so far as the search of the scooter is concerned, but keeping in view the fact that the person of the accused was also searched, it was obligatory on the part of the officers to comply with the said provisions, which was not done. This Court confirmed the acquittal of the accused. 11. In Union of India v. Shah Alam (2009) 16 SCC 644 , heroin was first recovered from the bags carried by the respondents therein. Thereafter, their personal search was taken but nothing was recovered from their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the existence of such a right. This right would be of little significance if the beneficiary thereof is not able to exercise it for want of knowledge about its existence. A joint communication of the right may not be clear or unequivocal. It may create confusion. It may result in diluting the right. We are, therefore, of the view that the accused must be individually informed that under Section 50(1) of the NDPS Act, he has a right to be searched before a nearest gazetted officer or before a nearest Magistrate. Similar view taken by the Punjab Haryana High Court in Paramjit Singh and the Bombay High Court in Dharamveer Lekhram Sharma meets with our approval. It bears repetition to state that on the written communication of the right available under Section 50(1) of the NDPS Act, respondent No.2 Surajmal has signed for himself and for respondent No.1 Parmanand. Respondent No.1 Parmanand has not signed on it at all. He did not give his independent consent. It is only to be presumed that he had authorized respondent No.2 Surajmal to sign on his behalf and convey his consent. Therefore, in our opinion, the right has not been properly communicated to the respondents. The sear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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