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TMI Blog2020 (2) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the said fine, to undergo simple imprisonment for a period of one month. Both sentences were ordered to run concurrently. 2. The Trial Court had found that the appellant was guilty of being found in possession of 25 grams of cocaine. The principal controversy to be addressed in this appeal is whether the appellant's search conducted by police officials - which yielded 25 grams of cocaine - was not compliant with the provisions of Section 50 of the NDPS Act, as it was not conducted in the presence of Gazetted Officer/Magistrate. Context 3. Briefly, the case of the prosecution is that on 04.06.2015, SI Shiv Darshan Singh, Narcotic Cell, Crime Branch, Daryaganj was informed by a secret informer that a person namely Innocent, resident of the Arjun Nagar area, is a supplier of cocaine in Delhi and would be coming to Sudarshan Marg, Gautam Nagar, Delhi between 06:30 pm and 07:00 pm to supply cocaine. A raiding party was constituted, which reached the spot at about 06:30 pm. At 06:55 pm, the informer pointed towards the accused who was wearing black t-shirt and green capris. When the accused was 5-7 steps away from the police officials, he became suspicious and started going ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded. PW-1 then identified his endorsement on the same. In his cross-examination, he stated that he started recording the FIR at 11:15 pm and informed the FIR number to the SHO at the same time. He concluded recording the same at about 12:35 am. 10. HC Narender, Narcotic Cell, Daryaganj deposed as PW-2. He deposed that he had taken the sample parcels on 08.06.2015 and had deposited the same with the FSL. The acknowledgement slip issued by FSL was handed over to him by HC Jag Narayan. In his cross-examination, he denied having been authorized by the inspector in writing to collect the samples from the aforesaid MHC (M). 11. HC Jag Narayan, PS Crime Branch, Malviya Nagar deposed as PW-3. He deposed that at about 11:35 pm, Insp. Ravinder Kumar Sharma had called him along with register no. 19 to his office. He made entry in the said register at serial no. 2319 and deposited the pullanda in the malkhana. In his cross-examination, he stated that the SHO had already written the FIR number on the pullandas when PW-3 was called by him at about 11:35 pm. He completed recording the requisite information in register no. 19 at about 12:00 am. 12. Ct. Rajeev Kumar, Narcotics Cell, Crime Bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day, but SI Shivdarshan was carrying the same. SI Shivdarshan informed Inspector Vivek Pathak about the seizure and arrest at about 07:15 pm. 14. HC Laxman Prasad, AHTU, Crime Branch, Sector-16, Rohini deposed as PW-7. He stated that on 04.06.2015 at about 04:25 pm, SI Shivdarshan told him and HC Satyawan about the secret information that the accused would come to the spot to supply cocaine. When they reached the spot, they saw one Nigerian person coming from the side of Yusuf Sarai on foot wearing green coloured capris and a black coloured t-shirt. The accused was apprehended by the raiding team at about 07:00 pm. Thereafter, SI Shivdarshan introduced himself and other members of the raiding party to the accused, who identified himself as Innocent Uzoma. SI Shivdarshan informed the accused about his legal right to be searched before a Gazetted officer or a Magistrate. A notice under Section 50 of the NDPS Act was prepared by SI Shivdarshan and a carbon copy of the same was given to the accused. Since the accused was illiterate, SI Shivdarshan read the contents of the same out to the accused. The accused's refusal was written on the said notice as was dictated to SI Shivdarshan b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at none of the members of the raiding party were carrying their phones on that day. Further, he stated that he prepared the notice under Section 50 of the NDPS Act while sitting on the footpath and the seizure memo was prepared by him on the bonnet of the Gypsy, under the light of the electric pole. No mobile phone was recovered from the possession of the accused. 18. SI Rajveer Singh, Parliament House Security deposed as PW-12. He deposed that on the intervening night of 04.06.2015 and 05.06.2015 at about 01:15 am, HC Satyawan handed him a computerized copy of FIR No. 84/15 dated 04.06.2015 and an original rukka. In his crossexamination, he stated that he came to know about the case through HC Satyawan. He affirmed that no mobile phone was recovered from the accused during his search. Submissions 19. At the outset, Mr. Kushwaha, learned counsel appearing for the appellant clarified that he does not wish to contest the appellant's conviction under Section 14(a) of the Foreigners Act, 1946. He stated that the appellant was sentenced to three years of rigorous imprisonment and a fine of Rs.10,000/- for committing the offence under Section 14 of the Foreigners Act, 1946 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hene tied with rubber band was recovered from the left pocket of the Capri pant, containing some white powder"; PW10 stated, in his cross-examination, that "he had checked both the pockets of green coloured capri. Beside the contraband, there was a purse in the right side of the pocket". Although on first blush, it does appear that there is a contradiction as to whether the contraband was recovered from the right pocket of the capris or the left pocket of the capris, worn by the appellant at the material time. However, on a closer examination, it is apparent that there is no contradiction in the testimony of PW7 and PW10 in this regard. In his examination in chief, PW 10 had deposed that "on the formal search the accused, on which one semi-transparent polythene was recovered from the left pocket of Capri of accused, tied with rubber band containing white powder". This is consistent with the testimony of PW7. The statement made in the cross-examination must be read in its context. PW10 had clarified that he had checked both the pockets and besides the contraband, a purse was recovered from the right pocket of the trousers worn by the appellant. This ought not to be read to mean that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch it is your legal right that your search could be taken before a Magistrate or a Gazetted officer for which arrangement can be made....". Mr. Kushwaha contended that the use of the word 'can' in the aforementioned sentence rendered the notice defective and not compliant with Section 50 of the NDPS Act. He submitted that sub-section (1) of Section 50 of the NDPS Act used the word 'shall' and it was expressly indicated that the officer authorized under Section 42 of the Act 'shall' take the person to the nearest Gazetted Officer or to the nearest Magistrate. 26. The aforesaid contention is unmerited. It is not disputed that the provisions of Section 50 of the NDPS Act are mandatory and must be strictly complied. The Supreme Court in The State of Punjab v. Baldev Singh: 1999 6 SCC 172 had explained that it is imperative that a person proposed to be searched be informed of his right under Sub-Section (1) of Section 50 of the NDPS Act of being taken to the nearest Gazetted Officer or the nearest Magistrate for conducing his/her search. In the present case, the notice issued under Section 50 of the NDPS Act (Ex. PW 5/A) clearly informed the appellant of such right. The use of the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. (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." 29. In State of Punjab v. Baldev Singh: 1999 6 SCC 172, the Constitution Bench of the Supreme had, inter alia, held as under: - "57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ible to cut short a criminal trial. (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law. (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the NDPS Act is concerned, it is mandatory and requires strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. 30. As observed in Presidential Poll, In re [(1974) 2 SCC 33] : (SCC p. 49, para 13) "13. ... It is the duty of the courts to get at the real intention of the legislature by carefully attending [to] the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." 31. We are of the opinion that the concept of "substantial complian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht - the right to be searched before a Magistrate or a Gazette Officer. In Vijaysinh Chandubha Jadeja (supra), the Supreme Court had also observed that the obligations of the authorized officer under Section 50(1) of the NDPS Act is mandatory and requires strict compliance. Failure to comply with the said provision would render the recovery of the illicit article suspect and vitiate the conviction. However, the Court had also observed that "Thereafter, the suspect may or may not choose to exercise the right provided to him under the said proviso". 33. In Ashok Kumar Sharma v. State of Rajasthan: (2013) 2 SCC 67, the Supreme Court considered a case where the authorized officer had merely informed the accused (appellant therein) that he can be searched before any Magistrate or Gazetted Officer, if he so wished. The Supreme Court held that the same did not comply with the mandatory procedure of Section 50 of the NDPS Act and, thus, vitiated the entire proceedings. The Court reasoned that the accused was only informed that he could be searched before a Magistrate or a Gazetted Officer if he so wished, however, the fact that the accused had a right under Section 50 of the NDPS Act to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation on the part of the empowered officer to inform the accused or the suspect of the existence of such a right to be searched before a gazetted officer or a Magistrate, if so required by him. Only if the suspect does not choose to exercise the right in spite of apprising him of his right, the empowered officer could conduct the search on the body of the person. 8. We may, in this connection, also examine the general maxim ignorantia juris non excusat and whether in such a situation the accused could take a defence that he was unaware of the procedure laid down in Section 50 of the NDPS Act. Ignorance does not normally afford any defence under the criminal law, since a person is presumed to know the law. Undisputedly ignorance of law often in reality exists, though as a general proposition, it is true, that knowledge of law must be imputed to every person. But it must be too much to impute knowledge in certain situations, for example, we cannot expect a rustic villager, totally illiterate, a poor man on the street, to be aware of the various laws laid down in this country, leave aside the NDPS Act. We notice that this fact is also within the knowledge of the legislature, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer / Magistrate. 37. This also is in conformity with the scheme that makes it amply clear that if the person proposed to be searched requires that search be conducted before a Gazetted Officer or a Magistrate, the authorised officer is required to take such person to the nearest Gazetted Officer/Magistrate. In terms of Sub-section (3) of Section 50 of the NDPS Act, a Gazetted Officer or a Magistrate may discharge any person brought before him/her, if he/she finds no reasonable grounds for conducting such search. Sub-section (5) and (6) were introduced in Section 50 of the NDPS Act by virtue of the Narcotics, Drugs and Psychotropic Substances (Amendment) Act, 2001 enacted on 27.09.2001 and came into effect from 02.10.2001. The said Subsections provided option to the authorised officer to search a person notwithstanding the said persons (suspect) requiring to be searched before a Magistrate/Gazetted Officer. However, the authorised person could do so only if the conditions as specified under Sub-section (5) of Section 50 of the NDPS Act were met, that is, if it is not possible to take the person to be searched to the nearest Gazetted Officer/Magistrate without the possibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds, the question that arises for consideration in this appeal is whether the prosecution was able to prove that the procedure prescribed under Section 50 of the NDPS Act was followed by the police officials in letter and spirit while making the search and recovery of the contraband "charas" from the appellant-accused. 18. What is the true scope and object of Section 50 of the NDPS Act, what are the duties, obligation and the powers conferred on the authorities under Section 50 and whether the compliance of requirements of Section 50 are mandatory or directory, remain no more res integra and are now settled by the two decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh [State of Punjab v. Baldev Singh, (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497]. 19. Indeed, the latter Constitution Bench decision rendered in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] has settled the aforementioned questions after taking into considerations all previous case law on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is legal right available to him under Section 50 in relation to the search, the appellant-accused gave his consent in writing to be searched by the police officials (raiding party), the two courts below came to a conclusion that the requirements of Section 50 stood fully complied with and hence the appellant was liable to be convicted for the offence punishable under the NDPS Act. 24. We do not agree to this finding of the two courts below as, in our opinion, a search and recovery made from the appellant of the alleged contraband "charas" does not satisfy the mandatory requirements of Section 50 as held by this Court in Vijaysinh Chandubha Jadeja [Vijaysinh Chandubha Jadeja v. State of Gujarat, (2011) 1 SCC 609 : (2011) 1 SCC (Cri) 497] . This we say for the following reasons: 24.1. First, it is an admitted fact emerging from the record of the case that the appellant was not produced before any Magistrate or gazetted officer. 24.2. Second, it is also an admitted fact that due to the aforementioned first reason, the search and recovery of the contraband "charas" was not made from the appellant in the presence of any Magistrate or gazetted officer. 24.3. Third, it is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, and not by the Magistrate or a Gazetted Officer. Neither were the appellant and his car produced before any Magistrate or Gazetted Officer. The plea, of the respondent, that, as the appellant had been apprised of his right to have himself, and his car, searched by the Magistrate or a Gazetted Officer, and he had himself agreed to be searched by the raiding party, the mandate of Section 50 stood fulfilled, though attractive, cannot sustain, as an identical plea, raised in similar facts, stands negated in Arif Khan (supra). 42. In Sikodh Mahto v. State: Crl.A. 660/2017 decided on 06.06.2019, the co-ordinate bench of this Court of Delhi held as hereunder: 52. Insofar as the facts, essential for determination of the controversy in issue are concerned, the present case cannot be distinguished, in any manner, from Arif Khan (supra). The only difference, on facts - which makes no difference to the legal position - is that, in Arif Khan (supra), the appellant Arif Khan, on being queried, confessed to carrying charas, whereas the appellants, in the present case, did not do so. In the present case, too, the alleged contraband charas was recovered from the bags of the appellants. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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