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TMI Blog2012 (11) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... t the final judgment and order dated 23.08.2007 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Criminal Appeal Nos. 738 and 772 of 2000 whereby the High Court dismissed the appeals filed by the appellants herein and confirmed the order of conviction and sentence dated 04.10.2000 passed by the Special Judge, Narcotic Drugs Psychotropic Substances Act, Guna (M.P.) in Special Case No. 7 of 1998 by which they were convicted under Section 8 read with Section 18 of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ) and sentenced to undergo rigorous imprisonment for ten years with a fine of ₹ 1,00,000/- with default stipulation. 2) Brief facts: (a) On 30.07.1998, at about 1.30 p.m., Som Singh Raghuvanshi, SHO, Police Station Kumbhraj, along with the police party went from the police station to search for the accused in connection with Crime No. 151 of 1998 registered under Sections 302 and 201 of IPC. In the process of searching, when they came to Khatkya Tiraha, they saw that one Maruti Car was coming from the side of Beenaganj. When they tried to stop that car, the driver tried to run away but they stopped t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the respondent-State. 4) The only point urged before us is about the non-compliance of Section 50 of the NDPS Act. According to Dr. J.N. Dubey, learned senior counsel for the appellant, considering the mandates provided under Section 50 of the NDPS Act as interpreted by two Constitution Benches of this Court, viz., State of Punjab vs. Baldev Singh, (1999) 6 SCC 172 and Vijaysinh Chandubha Jadeja vs. State of Gujarat (2011) 1 SCC 609, the prosecuting authorities failed to apprise the right of the suspect provided under Section 50 of the NDPS Act, hence on this ground the conviction is to be set aside. On the other hand, Mr. C.D. Singh, learned counsel for the State by pointing out the Panchnama regarding consent for personal search submitted that the conditions prescribed in Section 50 as explained in Baldev Singh s case (supra) have been fully complied with and prayed for dismissal of the appeal. 5) Since the only question pertains to compliance of Section 50 of the NDPS Act, it is useful to refer the same: 50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Section 42 is about to search any person under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search. (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act. (9) xxx xxxx (10) xxx xxxx 6) After the decision in Baldev Singh s case (supra), a Bench of three Judges of this Court in Joseph Fernandez vs. State of Goa, (2000) 1 SCC 707, has also considered the requirement of Section 50 of the NDPS Act and in para 2, observed as under: Even then the searching officer informed him that if you wish you may be searched in the presence of a gazetted officer or a Magistrate . This according to us is in substantial compliance with the requirement of Section 50. We do not agree with the contention that there was non-compliance with the mandatory provision contained in Section 50 of the Act. By saying so, after findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set the controversy raised, the Constitution Bench, at the foremost, recapitulated the decision arrived at by the Constitution Bench in Baldev Singh s case (supra). After considering all the earlier decisions, the latter Constitution Bench arrived at the following conclusions: 24. Although the Constitution Bench in Baldev Singh case did not decide in absolute terms the question whether or not Section 50 of the NDPS Act was directory or mandatory yet it was held that provisions of sub-section (1) of Section 50 make it imperative for the empowered officer to inform the person concerned (suspect) about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate; failure to inform the suspect about the existence of his said right would cause prejudice to him, and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from the person during a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing officer had Section 50 in mind and it was unaided by the interpretation placed on it by the Constitution Bench in Baldev Singh case4. A line or a word in a judgment cannot be read in isolation or as if interpreting a statutory provision, to impute a different meaning to the observations. It is manifest from the afore-extracted paragraph that Joseph Fernandez does not notice the ratio of Baldev Singh and in Prabha Shankar Dubey, Joseph Fernandez is followed ignoring the dictum laid down in Baldev Singh case. 29. In view of the foregoing discussion, we are of the firm opinion that the object with which the right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that insofar as the obligation of the authorised officer under sub-section (1) of Section 50 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 26 years 2/o Tapra Colony, Kumbhraj. 2. Bhup Singh s/o Ramnarain by caste Meena aged 25 years, r/o Kanakherhi P.S. Kumbhraj. In the presence of aforementioned panchas , I, the P.S. In-charge, asked the driver of Maruti Car No. D.N.C./7211 namely, Pramod Kumar s/o Raghuvir Singh by caste Gadariya, aged 20 years, r/o Chitbhawan, P.S. Ekdil, District Etawah, Suresh, s/o Rambabu Khatik, aged 18 years, r/o Village Chitbhawan, sitting with him in the case and Dinesh @ Pappu s/o Jagannath by caste Dube, aged 25 years, r/o Tikri presently at village Ballapur, P.S. Ajitmal, District Etawah, sitting on the rear seat, regarding their personal search asking them as to whether they would offer their personal search to me or to Gazetted Officer S.D.O.P. Sahib. At this, all the three suspects gave their consent for their personal search by me, the P.S. In-charge, and they also agreed for search of the car by me. Panchnama regarding consent for search has been prepared in the presence of the Panchas . [Emphasis supplied] Sd/- Signature of suspects Sri Lal Sd/- Suresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted earlier, we hold that, in the case on hand, the search and seizure of the suspect from the person of the appellants is bad and conviction is unsustainable in law. 12) We reiterate that sub-section (1) of Section 50 makes it imperative for the empowered officer to inform the person concerned about the existence of his right that if he so requires, he shall be searched before a gazetted officer or a Magistrate, failure to do so vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the contraband. We also reiterate that the said provision is mandatory and requires strict compliance. 13) Though a portion of the contraband (opium) was recovered from the vehicle for which Section 50 is not applicable, if we exclude the quantity recovered from the vehicle, the remaining would not come within the mischief of commercial quantity for imposition of such conviction and sentence. Taking note of length of period in prison and continuing as on date and in view of non-compliance of sub-section (1) of Section 50 in respect of recovery of contraband from the appellants, we set aside the conviction and sentence impos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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