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TMI Blog2018 (9) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... the search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not. It was, therefore, imperative for PW-2 to inform the appellant of his legal right to be searched in the presence of either a gazetted officer or a magistrate. The appellant was informed of his legal right to be searched in the presence of a magistrate or a gazetted officer. The appellant opted for the latter alternative. Exhibit-4 is a record of the events after the arrival of PW-4 on the scene. After the arrival of PW-4, the appellant was once again asked by him, whether he wished to be searched in the presence of a gazetted officer or a magistrate. This was the second option which was presented to him - Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact condu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed about his legal right to be searched either in the presence of a magistrate or a gazetted officer (Exhibit-3). The appellant opted for being searched by a gazetted officer. A gazetted officer, Inspector Joysurja Mukherjee ( PW-4 ), arrived on the scene at about 3.20 pm. He provided the appellant with a second option . The appellant was asked by PW-4 whether he wished to be searched in the presence of a gazetted officer or a magistrate (Exhibit-4). Once again, the appellant consented to be searched in the presence of a gazetted officer. PW-4 then inquired of the appellant whether he wanted to search PW-2 before the latter would carry out his search. The appellant agreed to search PW-2 before his own search was carried out by PW-2. No narcotic substance was recovered from the person of PW-2. PW-2 recovered nineteen deep brown / blackish broken rectangular sheets from a black polythene packet which was inside a biscuit colour jute bag, which the appellant was carrying in his right hand. The sheets were tested by PW-2 on the spot with the help of a test kit. The substance was found to be charas . The substance was also weighed using a weighing scale. The appellant was fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent-State has supported the judgment of the High Court and the legality of the conviction. He argued that since the search was carried out in a public place, this case falls solely within the ambit of Section 43 and compliance with Section 42 was not necessary. Learned counsel for the respondent-State also urged that Section 50 is not attracted when the search involves the search of a bag or an article belonging to a person. 5 Section 42 of the Act deals with the power of entry, search, seizure and arrest without warrant or authorization. It reads thus: 42. Power of entry, search, seizure and arrest without warrant or authorisation.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he shall within seventy-two hours send a copy thereof to his immediate official superior. Section 43 of the Act confers powers on the empowered officer to seize a substance and arrest a suspect in a public place. It provides thus: 43. Power of seizure and arrest in public place.- Any officer of any of the departments mentioned in section 42 may- (a) seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under this Act has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under this Act, and if such person has any narcotic drug or psychotropi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 432 a two judge Bench of this Court considered whether a police officer who had prior information was required to comply with the provisions of Section 42 before seizing contraband and arresting the appellant who was travelling on a motorcycle on the highway. Answering the above question in the negative, the Court held: Section 42 comprises of two components. One relates to the basis of information i.e.: (i) from personal knowledge, and (ii) information given by person and taken down in writing. The second is that the information must relate to commission of offence punishable under Chapter IV and/or keeping or concealment of document or article in any building, conveyance or enclosed place which may furnish evidence of commission of such offence. Unless both the components exist Section 42 has no application. Sub-section (2) mandates, as was noted in Baldev Singh case that where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Therefore, sub-section (2) only comes into operation where the officer concerned does the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived the information, admitted to not taking it down in writing, contending that Section 43 would be applicable. Rejecting the argument of the State, this Court held that the jeep which was intercepted, was not a public conveyance within the meaning of Section 43 and compliance with Section 42(1) was therefore mandatory. In Holia , Mandrax tablets were recovered from the hotel room of the respondent. The information was not reduced to writing by the officer who had first received the information. The State claimed that compliance with Section 42 was not required as the hotel was a public place. Rejecting the submission of the State, this Court held that while a hotel is a public place, a hotel room inside it is not a public place. This Court held thus: Section 43, on plain reading of the Act, may not attract the rigours of Section 42 thereof. That means that even subjective satisfaction on the part of the authority, as is required under sub-section (1) of Section 42, need not be complied with, only because the place whereat search is to be made is a public place. If Section 43 is to be treated as an exception to Section 42, it is required to be strictly complied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior. According to Section 50(1), an empowered officer should necessarily inform the suspect about his legal right, if he so requires, to be searched in the presence of a gazetted officer or a magistrate. In Vijaysinh Chandubha Jadeja v State of Gujarat ( Vijaysinh ), (2011) 1 SCC 609 a Constitution Bench of this Court interpreted Section 50 thus: The mandate of Section 50 is precise and clear, viz. if the person intended to be searched expresses to the authorised officer his desire to be taken to the nearest gazetted officer or the Magistrate, he cannot be searched till the gazetted officer or the Magistrate, as the case may be, directs the authorised officer to do so In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the Act After the decision in Baldev Singh, this Court has consistently held that Section 50 would only apply to search of a person and not to any bag, article or container, etc. being carried by him. In Parmanand , on a search of the person of the respondent, no substance was found. However, subsequently, opium was recovered from the bag of the respondent. A two judge Bench of this Court considered whether compliance with Section 50(1) was required. This Court held that the empowered officer was required to comply with the requirements of Section 50(1) as the person of the respondent was also searched. [Reference may also be made to the decision of a two judge Bench of this Court in Dilip v State of Madhya Pradesh ] (2007) 1 SCC 450. It was held thus: Thus, 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requirements of Section 50 were strictly complied with by PW-2 and PW-4. 11 As evidenced by Exhibit-3, a first option was given to the appellant. PW-2 informed him that it was his legal right to be searched either in the presence of a magistrate or in the presence of a gazetted officer. The appellant was then asked to give his option by indicating whether he wanted to be searched by a magistrate or a gazetted officer. The appellant indicated that he wanted the search to be carried out in the presence of a gazetted officer. When PW-4 arrived, he was introduced to the detainee as a gazetted officer. As evidenced by Exhibit-4, PW-4 then gave the appellant a second option. He inquired of him again, whether he wanted to be searched in the presence of a gazetted officer or in the presence of a magistrate. The appellant reiterated his desire to be searched in the presence of a gazetted officer. Before the search of the appellant commenced, the gazetted officer asked the appellant whether he wanted to search PW-2 before his own search was carried out by PW-2. The appellant agreed to search PW-2 before the latter carried out his search. On conducting the search, only personal belongi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... options given by both PW-2 and PW-4 were unambiguous. Merely because the appellant was given an option of searching PW-2 before the latter conducted his search, would not vitiate the search. In Parmanand , in addition to the option of being searched by the gazetted officer or the magistrate, the detainee was given a third alternative by the empowered officer which was to be searched by an officer who was a part of the raiding team. This was found to be contrary to the intent of Section 50(1). The option given to the appellant of searching PW-2 in the case at hand, before the latter searched the appellant, did not vitiate the process in which a search of the appellant was conducted. The search of the appellant was as a matter of fact conducted in the presence of PW-4, a gazetted officer, in consonance with the voluntary communication made by the appellant to both PW-2 and PW-4. There was strict compliance with the requirements of Section 50(1) as stipulated by this Court in Vijaysinh . 12 As we have already held that Section 50 was attracted in the present case, we do not need to decide on the applicability of Namdi to the facts of the present case. We have held that Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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